Abstract: The May 2015 pulsating development in South Africa’s international legal history has shown the world that for almost all African states, signing and ratifying statutes is one thing, and implementation is another. South Africa was the last state standing, all international hopes being on South Africa that the government would arrest Omar al Bashir if he sets foot in that country. Other African states that are signatories and ratifiers of the Rome Statute had flinched from arresting and surrendering Bashir to the International Criminal Court, such as Chad, Nigeria, Ethiopia, Eritrea, Djibouti, Malawi and Kenya. South Africa, which is regarded as a mature and stable democracy in Africa, astonishingly followed the African Union’s unity in defiance action by surreptitiously letting Omar al Bashir off the legal apocalyptic hook, violating its municipal and international legal provisions. Considering that the African Union had openly disassociated itself from the International Criminal Court, and South Africa speaking louder with actions rather than words, this paper moves that South Africa’s defiant action finally exposed Africa’s legal decadence and constituted a dreadful miscarriage of international justice. Politically, what the South African government did was commendable, but legally the government violated its municipal and international law provisions. This action has also finally led to the death of the International Criminal Court in Africa.
Ghetnet Metiku - An assessment of the effectiveness of the Universal Periodic...Ghetnet Metiku
This is a brief assessment of the effectiveness of the universal periodic review mechanism in terms of improving the protection and promotion of human rights. While the emphasis is on Ethiopia, a range of countries are covered in the assessment.
The document discusses the International Criminal Court (ICC) and recent efforts by some countries, predominantly in Africa, to withdraw from the ICC or undermine its authority. It provides background on the establishment of the ICC and its role in prosecuting war crimes, crimes against humanity, and genocide. However, some argue the ICC disproportionately targets African leaders, and the African Union has called on members to consider withdrawal. While not binding, this threatens the ICC's legitimacy and ability to uphold international law.
THE INTERNATIONAL CRIMINAL COURT (ICC) AND MYANMAR-BANGLADESHMYO AUNG Myanmar
The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.
The Court is participating in a global fight to end impunity, and through international criminal justice, the Court aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.
The Court cannot reach these goals alone. As a court of last resort, it seeks to complement, not replace, national Courts. Governed by an international treaty called the Rome Statute, the ICC is the world’s first permanent international criminal court.
https://www.icc-cpi.int/rohingya-myanmar
Preliminary examination Bangladesh/Myanmar(ONGOING)
https://www.icc-cpi.int/Pages/item.aspx?name=180918-otp-stat-Rohingya
Related Documents
18 September 2018
Statement of ICC Prosecutor, Mrs Fatou Bensouda, on opening a Preliminary Examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh
https://www.youtube.com/watch?v=DBDakDv9s2o&feature=youtu.be
https://www.dropbox.com/s/mszr5ktqh7a8ta0/Statement_of_ICC_Prosecutor_on_opening_a_Preliminary_Examination_concerning_the_Rohingya.mp4?dl=0
https://www.dropbox.com/s/xjfulzz77bl3nf5/Statement_of_ICC_Prosecutor_on_opening_a_Preliminary_Examination_concerning_the_Rohingya.mp3?dl=0
https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-1
https://www.icc-cpi.int/CourtRecords/CR2018_02057.PDF
https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-36
Notice of the Public Statement Issued by the Government of Myanmar
ICC-RoC46(3)-01/18-36
17 August 2018 | Office of the Prosecutor | Notice
https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-28
Decision Inviting the Competent Authorities of the Republic of the Union of Myanmar to Submit Observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) o
ICC-RoC46(3)-01/18-28
21 June 2018 | Pre-Trial Chamber I | Decision
https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-31
Systemic Analysis of the Levels of Protection Guaranteed in Regional Human Ri...ijtsrd
The continental division of humanity in the era of contemporary globalization has given rise to several regional systems of human rights protection that offer nuanced guarantees. It goes without saying that these regional mechanisms constitute the highest and strongest protection of human rights insofar as they involve jurisdictional institutions under the provisions of regional instruments. It is therefore necessary to analyze the legal differences that can be observed from one regional system to another in order to evaluate the quality of the protection guaranteed in each. Mohamed El Bachir Labiad "Systemic Analysis of the Levels of Protection Guaranteed in Regional Human Rights Law" Published in International Journal of Trend in Scientific Research and Development (ijtsrd), ISSN: 2456-6470, Volume-5 | Issue-4 , June 2021, URL: https://www.ijtsrd.compapers/ijtsrd42480.pdf Paper URL: https://www.ijtsrd.comother-scientific-research-area/public-relations/42480/systemic-analysis-of-the-levels-of-protection-guaranteed-in-regional-human-rights-law/mohamed-el-bachir-labiad
International Criminal Court: Jurisdiction and IssuesJee Lee
The document discusses individual criminal liability under international law, outlining the history and jurisdiction of the International Criminal Court (ICC) which prosecutes genocide, crimes against humanity, war crimes, and the crime of aggression. It explains the ICC's jurisdiction over these international crimes and how cases can be referred to the court by states, the UN Security Council, or initiated by the prosecutor. Issues relating to the ICC's impact on state sovereignty and selectivity of prosecutions are also addressed.
Significant development of the role of the International Criminal Court post ...Vilashini Devi
The International Criminal Court (ICC) was established in 2002 to prosecute serious international crimes. It was created due to the limitations of previous ad hoc tribunals which only addressed specific situations and crimes. The ICC has jurisdiction over genocide, crimes against humanity, war crimes, and crimes of aggression. While it has faced criticisms over issues like selectivity and sovereignty concerns, the ICC aims to end impunity for mass atrocities and bring justice to victims of serious international crimes.
Transnational organized crime its conceptgagan deep
Transnational organized crime (TOC) involves criminal groups that coordinate illegal activities across national borders. TOC groups use violence and corruption to traffic drugs, arms, people, toxic waste, and other illicit goods. Several international law enforcement agencies work to combat TOC, including Interpol, Europol, and the UN Office on Drugs and Crime. However, TOC remains a significant threat due to the challenges of international cooperation and the economic benefits some states and groups receive from criminal enterprises.
Ghetnet Metiku - An assessment of the effectiveness of the Universal Periodic...Ghetnet Metiku
This is a brief assessment of the effectiveness of the universal periodic review mechanism in terms of improving the protection and promotion of human rights. While the emphasis is on Ethiopia, a range of countries are covered in the assessment.
The document discusses the International Criminal Court (ICC) and recent efforts by some countries, predominantly in Africa, to withdraw from the ICC or undermine its authority. It provides background on the establishment of the ICC and its role in prosecuting war crimes, crimes against humanity, and genocide. However, some argue the ICC disproportionately targets African leaders, and the African Union has called on members to consider withdrawal. While not binding, this threatens the ICC's legitimacy and ability to uphold international law.
THE INTERNATIONAL CRIMINAL COURT (ICC) AND MYANMAR-BANGLADESHMYO AUNG Myanmar
The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.
The Court is participating in a global fight to end impunity, and through international criminal justice, the Court aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.
The Court cannot reach these goals alone. As a court of last resort, it seeks to complement, not replace, national Courts. Governed by an international treaty called the Rome Statute, the ICC is the world’s first permanent international criminal court.
https://www.icc-cpi.int/rohingya-myanmar
Preliminary examination Bangladesh/Myanmar(ONGOING)
https://www.icc-cpi.int/Pages/item.aspx?name=180918-otp-stat-Rohingya
Related Documents
18 September 2018
Statement of ICC Prosecutor, Mrs Fatou Bensouda, on opening a Preliminary Examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh
https://www.youtube.com/watch?v=DBDakDv9s2o&feature=youtu.be
https://www.dropbox.com/s/mszr5ktqh7a8ta0/Statement_of_ICC_Prosecutor_on_opening_a_Preliminary_Examination_concerning_the_Rohingya.mp4?dl=0
https://www.dropbox.com/s/xjfulzz77bl3nf5/Statement_of_ICC_Prosecutor_on_opening_a_Preliminary_Examination_concerning_the_Rohingya.mp3?dl=0
https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-1
https://www.icc-cpi.int/CourtRecords/CR2018_02057.PDF
https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-36
Notice of the Public Statement Issued by the Government of Myanmar
ICC-RoC46(3)-01/18-36
17 August 2018 | Office of the Prosecutor | Notice
https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-28
Decision Inviting the Competent Authorities of the Republic of the Union of Myanmar to Submit Observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) o
ICC-RoC46(3)-01/18-28
21 June 2018 | Pre-Trial Chamber I | Decision
https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-31
Systemic Analysis of the Levels of Protection Guaranteed in Regional Human Ri...ijtsrd
The continental division of humanity in the era of contemporary globalization has given rise to several regional systems of human rights protection that offer nuanced guarantees. It goes without saying that these regional mechanisms constitute the highest and strongest protection of human rights insofar as they involve jurisdictional institutions under the provisions of regional instruments. It is therefore necessary to analyze the legal differences that can be observed from one regional system to another in order to evaluate the quality of the protection guaranteed in each. Mohamed El Bachir Labiad "Systemic Analysis of the Levels of Protection Guaranteed in Regional Human Rights Law" Published in International Journal of Trend in Scientific Research and Development (ijtsrd), ISSN: 2456-6470, Volume-5 | Issue-4 , June 2021, URL: https://www.ijtsrd.compapers/ijtsrd42480.pdf Paper URL: https://www.ijtsrd.comother-scientific-research-area/public-relations/42480/systemic-analysis-of-the-levels-of-protection-guaranteed-in-regional-human-rights-law/mohamed-el-bachir-labiad
International Criminal Court: Jurisdiction and IssuesJee Lee
The document discusses individual criminal liability under international law, outlining the history and jurisdiction of the International Criminal Court (ICC) which prosecutes genocide, crimes against humanity, war crimes, and the crime of aggression. It explains the ICC's jurisdiction over these international crimes and how cases can be referred to the court by states, the UN Security Council, or initiated by the prosecutor. Issues relating to the ICC's impact on state sovereignty and selectivity of prosecutions are also addressed.
Significant development of the role of the International Criminal Court post ...Vilashini Devi
The International Criminal Court (ICC) was established in 2002 to prosecute serious international crimes. It was created due to the limitations of previous ad hoc tribunals which only addressed specific situations and crimes. The ICC has jurisdiction over genocide, crimes against humanity, war crimes, and crimes of aggression. While it has faced criticisms over issues like selectivity and sovereignty concerns, the ICC aims to end impunity for mass atrocities and bring justice to victims of serious international crimes.
Transnational organized crime its conceptgagan deep
Transnational organized crime (TOC) involves criminal groups that coordinate illegal activities across national borders. TOC groups use violence and corruption to traffic drugs, arms, people, toxic waste, and other illicit goods. Several international law enforcement agencies work to combat TOC, including Interpol, Europol, and the UN Office on Drugs and Crime. However, TOC remains a significant threat due to the challenges of international cooperation and the economic benefits some states and groups receive from criminal enterprises.
This document provides an overview and summary of a report by the International Bar Association following a fact-finding mission to Equatorial Guinea in July 2003. The summary includes:
1) The delegation met with government officials, judges, lawyers, and civil society members to examine the independence of the judiciary and legal profession as well as guarantees for fair judicial proceedings.
2) The key findings were a lack of separation of powers, restrictions on civil liberties and media freedom, concerns about unfair trials and human rights abuses occurring with impunity.
3) The recommendations called on the government to respect judicial independence, implement legal reforms, allow freedom of expression and association, end torture, and establish independent bar associations and regulatory bodies
The document summarizes Amnesty International's concerns about a crackdown on freedom of expression in Palestine. It discusses:
1) Arbitrary arrests, assaults and equipment confiscation against journalists by Palestinian authorities in the West Bank and torture of activists in Gaza by Hamas authorities.
2) A new Electronic Crimes Law passed without proper process that criminalizes online dissent and criticism of authorities, with harsh penalties including imprisonment.
3) Provisions in the law that infringe on rights to free expression and privacy by imposing surveillance, data retention and penalizing anonymous speech online.
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
On 20 November, the Prosecutor of the International Criminal Court (ICC) finally published her request to open a formal investigation into war crimes and crimes against humanity committed in Afghanistan. This means that the Prosecutor agrees with the result of the preliminary examination showing that crimes meeting the ICC gravity threshold have been committed in Afghanistan since 2003 (the period for which the ICC has jurisdiction) and that the ICC considers that Afghanistan is either unwilling or unable to prosecute these crimes nationally. The Prosecutor also made an open request to the victims to send their statements to the Court by 31 January 2018. There is, then, a very important but short window of opportunity for victims to share their stories with the Court. On the occasion of the release of the Prosecutor’s request, AAN is publishing this question and answers dispatch focusing on the ICC and Afghanistan (1).
The International Criminal Justice and the international judicial mechanisms such as the Transitional Justice are far away to promote impunity for crimes against humanity or war crimes. This is inferred from the analysis carried out by Jhon Cubbon, Senior Legal Officer of the International Criminal Tribunal for the former Yugoslavia, on these kinds of Tribunales established for the prosecution and punishment of those responsible or these serious crimes.
The document provides an analysis of the ICC arrest warrant issued for Omar al-Bashir, President of Sudan, for his alleged role in war crimes and crimes against humanity in Darfur from 2003 to 2008. It discusses the requirements for issuing an arrest warrant under the Rome Statute and analyzes whether those requirements were met. Specifically, it examines whether there were reasonable grounds to believe war crimes and crimes against humanity were committed in Darfur, whether Bashir incurred criminal liability as a co-perpetrator, and whether his arrest was necessary. It finds the evidence showed a non-international armed conflict in Darfur between Sudanese government forces and rebel groups, and that Bashir used state apparatus to direct widespread and systematic
Voting Rights & Remedies from an International Perspective May 2016Ben Griffith
This document discusses voting rights and remedies for violations of voting rights from an international perspective. It begins by outlining key international instruments that relate to voting rights, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and regional human rights charters. It then examines the scope and historical underpinnings of voting rights, including their roots in documents like the Magna Carta. The document also discusses tensions between democratic principles and state sovereignty in enforcing voting rights. It analyzes cases where states have been accused of violating rights to universal suffrage, such as by restricting voting rights of felons. The document concludes by examining international political participation rights and a case on disqualifying civil servants from
Ghetnet Metiku - Institutional advances in the african human rights system si...Ghetnet Metiku
This brief paper explores the institutional advances in the african human rights system since the adoption of the African Charter on Human and Peoples' Rights (ACHPR).
Role of ICC in Promoting International Humanitarian LawAnurag Chakma
The International Criminal Court investigates and prosecutes individuals accused of genocide, crimes against humanity, war crimes, and the crime of aggression. It was established in 2002 and has 120 member states. The Court complements national courts and only investigates crimes within its jurisdiction when states are unwilling or unable to prosecute. If convicted, individuals face up to 30 years imprisonment or life imprisonment for the most serious crimes.
Journalism in jordan: Developments in press freedom since the Arab SpringMatt J. Duffy
Research shows four major incidents in Jordan that led to worse press freedom rankings. They are criminal defamation charges, unfair protection of public figures, licensing of journalists and vague terrorism laws.
1) The document discusses the history and development of human rights protections over the past 50 years. It describes how the author helped establish civil liberties groups in the UK Parliament in the 1960s to address issues like the death penalty, racial discrimination, and police misconduct.
2) After losing his seat in Parliament in 1970, the author inherited a peerage title in 1971 and returned to actively work on international human rights as an emissary for Amnesty International, visiting countries like Sri Lanka, Argentina, and South Africa to investigate human rights issues.
3) The author discusses the various international and regional mechanisms that now exist to monitor and enforce human rights standards, including UN bodies, the European Court of Human Rights, and
This document discusses jurisdiction and admissibility of cases to the International Criminal Court (ICC). It provides details on the ICC's jurisdiction according to temporal, personal, territorial and subject-matter components. Crimes under the ICC's jurisdiction include genocide, crimes against humanity, war crimes, and the crime of aggression. For a case to be admissible, the domestic court must be unable or unwilling to prosecute. The ICC can only hear a case if states are unable or unwilling to act, or if referred by the UN Security Council. It cannot hear cases that states have decided to prosecute domestically.
Despite Arab uprisings, press freedom still elusiveMatt J. Duffy
Despite some improvements in press freedom after the Arab uprisings, restrictions remain or have increased in many countries. A few countries like Libya, Tunisia, and Lebanon are ranked as "partly free" by Freedom House, while most Arab nations are still considered "not free". Governments continue to use laws against defamation, insulting officials, spreading false news, and disturbing public order to censor journalists and promote self-censorship. While some new media have emerged since 2011, legal reforms are still needed across the region to strengthen protections for freedom of the press.
The document summarizes human rights issues in Egypt, including restrictive defamation laws. Defamation remains a criminal offense that authorities use to limit freedom of expression. Journalists face imprisonment for insults to government officials or spreading "false news." Extremism laws have led to mass arrests without evidence. While the constitution protects civil liberties, authorities have detained thousands for peacefully exercising freedom of speech, assembly, and association. Violence against women in protests is also a concern. International groups have found Egypt's laws contradictory to obligations on civil and political rights.
The document summarizes key sections of the 1987 Philippine Constitution relating to individual rights and limitations on state power. It outlines the rights to form associations (Section 8), private property (Section 9), and sanctity of contracts (Section 10). Private property is subject to eminent domain with just compensation and due process. Contracts cannot be applied retroactively. Due process requires any deprivation of life, liberty, or property to be done under a valid law through fair procedures, including requiring warrants for search and arrest.
INTERPOL has its origins in the early twentieth century when high-ranking police officials from twenty European States came together to create a centralized police cooperation agency. At 1923 Criminal Police Congress in Vienna, in response to the need for enhanced international police cooperation to tackle international crime, theInternational
Criminal Police Commission („ICPC‟) was established, headquartered in Vienna, and at that stage under the management of Austrian police. When the institution subsequently came under the control of Nazi Germany, its headquarters were moved to Berlin and most national police forces withdrew their participation.
International police organization Interpol was established in 1923 and facilitates international police cooperation. It focuses on public safety and battling transnational crimes. Interpol aims to promote mutual assistance between criminal police authorities within existing laws and human rights. In 2016, a Chinese politician was elected Interpol president but went missing in 2018 during a trip to China. Interpol's role is defined in its constitution to ensure cooperation between police and establish institutions to prevent crimes.
INTERNATIONAL CRIMINAL COURT - FACT SHEETVogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
The International Criminal Court
For more than half a century since the Nuremberg and Tokyo trials, states have largely
failed to bring to justice those responsible for genocide, crimes against humanity and war crimes. With the creation of the International Criminal Court (ICC), the world has begun to fulfill the post-World War II promise of “never again.” The ICC is the world’s first permanent, international judicial body capable of bringing perpetrators to justice and providing redress to victims when states are unable or unwilling to do so. This represents a major stride for international justice. . .
What crimes does the Court prosecute?
The ICC can prosecute and bring to justice individuals accused of genocide, war crimes and crimes against humanity.
How do cases come before the Court?
Cases come before the court in one of three ways: (1) The Court’s Prosecutor can initiate an investigation into a situation where one or more of the crimes has been committed, based on information from any source, including the victim or the victim’s family, but only if the Court has jurisdiction over the crime and individual. (2) States that have ratified the Rome Statute may ask the Prosecutor to investigate a situation where one or more of the crimes have been committed. (3) The U.N. Security Council can ask the Prosecutor to investigate a situation where one or more of the crimes have been committed, even if the crimes occurred in the territory of a state that has not ratified the Rome Statute or was committed by the national of such a state.
What is the U.S. position on the Court?
…the ICC would only investigate cases involving U.S. nationals if the U.S. failed to investigate and, if appropriate, prosecute the individuals responsible. …
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Post Office Box 31265
Jackson, Mississippi 39286
(513) 680-2922
DONATIONS to support the work may be made at:
www.Cash.me/$VogelDeniseNewsome
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The “.02% DELEGATION” Website: www.vogeldenisenewsome.com
Article 19(1)(a) of the Indian Constitution guarantees citizens the fundamental right to freedom of speech and expression. However, this right is subject to reasonable restrictions related to sovereignty, security, public order, decency, contempt of court, defamation, and incitement of offenses. Section 66A of the IT Act, which criminalized sending offensive messages online, has been criticized as an unreasonable restriction on free speech. While artistic works may cause offense, the courts have held that offense alone does not amount to a criminal act. Sedition laws under the IPC must also be narrowly construed to only criminalize speech that incites violence or disorder.
Freedom-of-assembly Relation Sandro Suzart SUZART GOOGLE INC United S...Sandro Suzart
relationship between Sandro Suzart SUZART GOOGLE INC and United States on Demonstrations 2013 and Impeachments of 22 governments Relation, Sandro Suzart, SUZART, GOOGLE INC, United States on Demonstrations countries IMPEACHMENT GOOGLE INC
Obstetric Fistula Community Based Assessment Tool (OF-COMBAT)paperpublications3
OF-COMBAT is a community-based screening tool developed to identify potential cases of obstetric fistula in remote areas with weak health systems. The tool consists of 27 questions in 4 categories addressing clinical presentation, causes, and time between cause and effect. It was tested on 153 women in Kenya, correctly identifying most fistula cases while minimizing referrals of women with other conditions. The tool provides a tentative diagnosis to help determine if a woman needs to travel for facility-based confirmation and potential treatment. It aims to improve identification and access to care for fistula patients in a cost-effective manner.
Abstract: Health, as we all think is a state of feeling well and not being ill. The concept of health varies across time and place. Historically and culturally, there have been many attempts to define health. Though the World Health Organization’s definition is accepted globally as the standard definition of health, it is found that the concept of health is associated with several components. The objective of this study is to define health through a holistic and integrative approach. An extensive review is done to give an integrated definition to the term health. After reviewing several definitions and theories of health, it is defined as a complete physical, mental, social and spiritual wellbeing across the life span right from the conception till the end of life filled with three gunas and covered by four ecological nested systems overflowing with energy, life and productivity without any infirmity.
Aspiration for an ‘Ethnic’ Identity: Assessing Autonomy Movement in Karbi Ang...paperpublications3
Abstract: Movements for autonomy have marked the political discourse in North East India for the last decades. While some have resolutely expressed the need for more autonomy within the present set-up, other movements have evolved more militant, secessionist idea of political and geographical demarcation of territory. The aim and purpose of this autonomy movement is not only to bring change in the existing system, but also to augment legitimate expressions of aspirations by the people having a distinct culture, tradition and common pattern of living. The autonomy movement by the tribals of the Karbi Anglong district of Assam state in India is a result of continuous resentment and frustration of the hill tribal people, due to discrimination and oppression by the government of Assam and the plain people of Assam. Although, Autonomous District Council (ADC) existed in Karbi Anglong district since 1952 to give some sort of autonomy to the tribal people to administer themselves and take some developmental steps, much improvement could not be achieved due to limited power of the ADC and the state government’s apathy This very question of identity crisis of the ethnic groups impels them to resort to various sorts of ethnic movements demanding either autonomy or separation from the larger groups. The state of Assam itself has undergone several splits in the post-independence period only to satisfy the ethnic aspirations of the different ethnic groups of the region. As in the other parts of the region, among the Karbis of Karbi Anglong district of Assam, the question of ethnic identity is responsible for the ethnic movements of the Karbis demanding autonomy or statehood at different periods of times in the post-independence period of the country. This paper tries to focus on those aspects of politicization which is playing a pivotal role in making the identity question and also finding out the factors inherited with the autonomy movement among the Karbi community of Assam.
This document provides an overview and summary of a report by the International Bar Association following a fact-finding mission to Equatorial Guinea in July 2003. The summary includes:
1) The delegation met with government officials, judges, lawyers, and civil society members to examine the independence of the judiciary and legal profession as well as guarantees for fair judicial proceedings.
2) The key findings were a lack of separation of powers, restrictions on civil liberties and media freedom, concerns about unfair trials and human rights abuses occurring with impunity.
3) The recommendations called on the government to respect judicial independence, implement legal reforms, allow freedom of expression and association, end torture, and establish independent bar associations and regulatory bodies
The document summarizes Amnesty International's concerns about a crackdown on freedom of expression in Palestine. It discusses:
1) Arbitrary arrests, assaults and equipment confiscation against journalists by Palestinian authorities in the West Bank and torture of activists in Gaza by Hamas authorities.
2) A new Electronic Crimes Law passed without proper process that criminalizes online dissent and criticism of authorities, with harsh penalties including imprisonment.
3) Provisions in the law that infringe on rights to free expression and privacy by imposing surveillance, data retention and penalizing anonymous speech online.
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
On 20 November, the Prosecutor of the International Criminal Court (ICC) finally published her request to open a formal investigation into war crimes and crimes against humanity committed in Afghanistan. This means that the Prosecutor agrees with the result of the preliminary examination showing that crimes meeting the ICC gravity threshold have been committed in Afghanistan since 2003 (the period for which the ICC has jurisdiction) and that the ICC considers that Afghanistan is either unwilling or unable to prosecute these crimes nationally. The Prosecutor also made an open request to the victims to send their statements to the Court by 31 January 2018. There is, then, a very important but short window of opportunity for victims to share their stories with the Court. On the occasion of the release of the Prosecutor’s request, AAN is publishing this question and answers dispatch focusing on the ICC and Afghanistan (1).
The International Criminal Justice and the international judicial mechanisms such as the Transitional Justice are far away to promote impunity for crimes against humanity or war crimes. This is inferred from the analysis carried out by Jhon Cubbon, Senior Legal Officer of the International Criminal Tribunal for the former Yugoslavia, on these kinds of Tribunales established for the prosecution and punishment of those responsible or these serious crimes.
The document provides an analysis of the ICC arrest warrant issued for Omar al-Bashir, President of Sudan, for his alleged role in war crimes and crimes against humanity in Darfur from 2003 to 2008. It discusses the requirements for issuing an arrest warrant under the Rome Statute and analyzes whether those requirements were met. Specifically, it examines whether there were reasonable grounds to believe war crimes and crimes against humanity were committed in Darfur, whether Bashir incurred criminal liability as a co-perpetrator, and whether his arrest was necessary. It finds the evidence showed a non-international armed conflict in Darfur between Sudanese government forces and rebel groups, and that Bashir used state apparatus to direct widespread and systematic
Voting Rights & Remedies from an International Perspective May 2016Ben Griffith
This document discusses voting rights and remedies for violations of voting rights from an international perspective. It begins by outlining key international instruments that relate to voting rights, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and regional human rights charters. It then examines the scope and historical underpinnings of voting rights, including their roots in documents like the Magna Carta. The document also discusses tensions between democratic principles and state sovereignty in enforcing voting rights. It analyzes cases where states have been accused of violating rights to universal suffrage, such as by restricting voting rights of felons. The document concludes by examining international political participation rights and a case on disqualifying civil servants from
Ghetnet Metiku - Institutional advances in the african human rights system si...Ghetnet Metiku
This brief paper explores the institutional advances in the african human rights system since the adoption of the African Charter on Human and Peoples' Rights (ACHPR).
Role of ICC in Promoting International Humanitarian LawAnurag Chakma
The International Criminal Court investigates and prosecutes individuals accused of genocide, crimes against humanity, war crimes, and the crime of aggression. It was established in 2002 and has 120 member states. The Court complements national courts and only investigates crimes within its jurisdiction when states are unwilling or unable to prosecute. If convicted, individuals face up to 30 years imprisonment or life imprisonment for the most serious crimes.
Journalism in jordan: Developments in press freedom since the Arab SpringMatt J. Duffy
Research shows four major incidents in Jordan that led to worse press freedom rankings. They are criminal defamation charges, unfair protection of public figures, licensing of journalists and vague terrorism laws.
1) The document discusses the history and development of human rights protections over the past 50 years. It describes how the author helped establish civil liberties groups in the UK Parliament in the 1960s to address issues like the death penalty, racial discrimination, and police misconduct.
2) After losing his seat in Parliament in 1970, the author inherited a peerage title in 1971 and returned to actively work on international human rights as an emissary for Amnesty International, visiting countries like Sri Lanka, Argentina, and South Africa to investigate human rights issues.
3) The author discusses the various international and regional mechanisms that now exist to monitor and enforce human rights standards, including UN bodies, the European Court of Human Rights, and
This document discusses jurisdiction and admissibility of cases to the International Criminal Court (ICC). It provides details on the ICC's jurisdiction according to temporal, personal, territorial and subject-matter components. Crimes under the ICC's jurisdiction include genocide, crimes against humanity, war crimes, and the crime of aggression. For a case to be admissible, the domestic court must be unable or unwilling to prosecute. The ICC can only hear a case if states are unable or unwilling to act, or if referred by the UN Security Council. It cannot hear cases that states have decided to prosecute domestically.
Despite Arab uprisings, press freedom still elusiveMatt J. Duffy
Despite some improvements in press freedom after the Arab uprisings, restrictions remain or have increased in many countries. A few countries like Libya, Tunisia, and Lebanon are ranked as "partly free" by Freedom House, while most Arab nations are still considered "not free". Governments continue to use laws against defamation, insulting officials, spreading false news, and disturbing public order to censor journalists and promote self-censorship. While some new media have emerged since 2011, legal reforms are still needed across the region to strengthen protections for freedom of the press.
The document summarizes human rights issues in Egypt, including restrictive defamation laws. Defamation remains a criminal offense that authorities use to limit freedom of expression. Journalists face imprisonment for insults to government officials or spreading "false news." Extremism laws have led to mass arrests without evidence. While the constitution protects civil liberties, authorities have detained thousands for peacefully exercising freedom of speech, assembly, and association. Violence against women in protests is also a concern. International groups have found Egypt's laws contradictory to obligations on civil and political rights.
The document summarizes key sections of the 1987 Philippine Constitution relating to individual rights and limitations on state power. It outlines the rights to form associations (Section 8), private property (Section 9), and sanctity of contracts (Section 10). Private property is subject to eminent domain with just compensation and due process. Contracts cannot be applied retroactively. Due process requires any deprivation of life, liberty, or property to be done under a valid law through fair procedures, including requiring warrants for search and arrest.
INTERPOL has its origins in the early twentieth century when high-ranking police officials from twenty European States came together to create a centralized police cooperation agency. At 1923 Criminal Police Congress in Vienna, in response to the need for enhanced international police cooperation to tackle international crime, theInternational
Criminal Police Commission („ICPC‟) was established, headquartered in Vienna, and at that stage under the management of Austrian police. When the institution subsequently came under the control of Nazi Germany, its headquarters were moved to Berlin and most national police forces withdrew their participation.
International police organization Interpol was established in 1923 and facilitates international police cooperation. It focuses on public safety and battling transnational crimes. Interpol aims to promote mutual assistance between criminal police authorities within existing laws and human rights. In 2016, a Chinese politician was elected Interpol president but went missing in 2018 during a trip to China. Interpol's role is defined in its constitution to ensure cooperation between police and establish institutions to prevent crimes.
INTERNATIONAL CRIMINAL COURT - FACT SHEETVogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
The International Criminal Court
For more than half a century since the Nuremberg and Tokyo trials, states have largely
failed to bring to justice those responsible for genocide, crimes against humanity and war crimes. With the creation of the International Criminal Court (ICC), the world has begun to fulfill the post-World War II promise of “never again.” The ICC is the world’s first permanent, international judicial body capable of bringing perpetrators to justice and providing redress to victims when states are unable or unwilling to do so. This represents a major stride for international justice. . .
What crimes does the Court prosecute?
The ICC can prosecute and bring to justice individuals accused of genocide, war crimes and crimes against humanity.
How do cases come before the Court?
Cases come before the court in one of three ways: (1) The Court’s Prosecutor can initiate an investigation into a situation where one or more of the crimes has been committed, based on information from any source, including the victim or the victim’s family, but only if the Court has jurisdiction over the crime and individual. (2) States that have ratified the Rome Statute may ask the Prosecutor to investigate a situation where one or more of the crimes have been committed. (3) The U.N. Security Council can ask the Prosecutor to investigate a situation where one or more of the crimes have been committed, even if the crimes occurred in the territory of a state that has not ratified the Rome Statute or was committed by the national of such a state.
What is the U.S. position on the Court?
…the ICC would only investigate cases involving U.S. nationals if the U.S. failed to investigate and, if appropriate, prosecute the individuals responsible. …
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Article 19(1)(a) of the Indian Constitution guarantees citizens the fundamental right to freedom of speech and expression. However, this right is subject to reasonable restrictions related to sovereignty, security, public order, decency, contempt of court, defamation, and incitement of offenses. Section 66A of the IT Act, which criminalized sending offensive messages online, has been criticized as an unreasonable restriction on free speech. While artistic works may cause offense, the courts have held that offense alone does not amount to a criminal act. Sedition laws under the IPC must also be narrowly construed to only criminalize speech that incites violence or disorder.
Freedom-of-assembly Relation Sandro Suzart SUZART GOOGLE INC United S...Sandro Suzart
relationship between Sandro Suzart SUZART GOOGLE INC and United States on Demonstrations 2013 and Impeachments of 22 governments Relation, Sandro Suzart, SUZART, GOOGLE INC, United States on Demonstrations countries IMPEACHMENT GOOGLE INC
Obstetric Fistula Community Based Assessment Tool (OF-COMBAT)paperpublications3
OF-COMBAT is a community-based screening tool developed to identify potential cases of obstetric fistula in remote areas with weak health systems. The tool consists of 27 questions in 4 categories addressing clinical presentation, causes, and time between cause and effect. It was tested on 153 women in Kenya, correctly identifying most fistula cases while minimizing referrals of women with other conditions. The tool provides a tentative diagnosis to help determine if a woman needs to travel for facility-based confirmation and potential treatment. It aims to improve identification and access to care for fistula patients in a cost-effective manner.
Abstract: Health, as we all think is a state of feeling well and not being ill. The concept of health varies across time and place. Historically and culturally, there have been many attempts to define health. Though the World Health Organization’s definition is accepted globally as the standard definition of health, it is found that the concept of health is associated with several components. The objective of this study is to define health through a holistic and integrative approach. An extensive review is done to give an integrated definition to the term health. After reviewing several definitions and theories of health, it is defined as a complete physical, mental, social and spiritual wellbeing across the life span right from the conception till the end of life filled with three gunas and covered by four ecological nested systems overflowing with energy, life and productivity without any infirmity.
Aspiration for an ‘Ethnic’ Identity: Assessing Autonomy Movement in Karbi Ang...paperpublications3
Abstract: Movements for autonomy have marked the political discourse in North East India for the last decades. While some have resolutely expressed the need for more autonomy within the present set-up, other movements have evolved more militant, secessionist idea of political and geographical demarcation of territory. The aim and purpose of this autonomy movement is not only to bring change in the existing system, but also to augment legitimate expressions of aspirations by the people having a distinct culture, tradition and common pattern of living. The autonomy movement by the tribals of the Karbi Anglong district of Assam state in India is a result of continuous resentment and frustration of the hill tribal people, due to discrimination and oppression by the government of Assam and the plain people of Assam. Although, Autonomous District Council (ADC) existed in Karbi Anglong district since 1952 to give some sort of autonomy to the tribal people to administer themselves and take some developmental steps, much improvement could not be achieved due to limited power of the ADC and the state government’s apathy This very question of identity crisis of the ethnic groups impels them to resort to various sorts of ethnic movements demanding either autonomy or separation from the larger groups. The state of Assam itself has undergone several splits in the post-independence period only to satisfy the ethnic aspirations of the different ethnic groups of the region. As in the other parts of the region, among the Karbis of Karbi Anglong district of Assam, the question of ethnic identity is responsible for the ethnic movements of the Karbis demanding autonomy or statehood at different periods of times in the post-independence period of the country. This paper tries to focus on those aspects of politicization which is playing a pivotal role in making the identity question and also finding out the factors inherited with the autonomy movement among the Karbi community of Assam.
Human Life in Patriarchal Society in Shashi Deshpande’s The Dark Holds No Ter...paperpublications3
Abstract: Everyone’s life is shaped by many kinds of external factors. But the one external factor, the patriarchal system has become such an important fact/ part of human life that human has forgotten his real existence in this world. Shashi Deshpande is renowned novelist in Indian Writing in English. She has discovered the real life behind the curtain of patriarchal society. She has described the human life in patriarchal society in many of her novels. Deshpande has described the human’s life’s main issues like profession, marriage, education etc. She has described how patriarchal structure affects human’s humanity and makes him/her the cultural product. The present paper makes a study of the human life in the patriarchal society in Shashi Deshpande’s The Dark Holds No Terror and A Matter of Time. This paper highlights the clash between modern and traditional life in the patriarchal society.
Effect of Communication Process and Mission on Project Implementation in Coun...paperpublications3
Abstract: The purpose of this study was to provide research based information that will improve project implementation in County Governments in Kenya. The data was collected through questionnaires, interviews and documents analysis. The target population was the County Executive Committee Members, the County Representatives and the County Public Service employees. The findings from the analysis show that communication is pillar of projects implementation among the county government. The study therefore recommends that the County Governments should work towards achieving their goals by sharing information with its stakeholders and having clear project mission to promote goals achievement in the projects being undertaken.
Abstract: Human values were considered the most important in ancient India. This country of rich culture believed to be created by God, has full of values and virtues. Even the battles in India was based on value. The war at kurukshetra was one of the fought at Dharmakshetram. Ancient human society followed certain basic human values in their life. Our Rushis of the ancient starting from Viswamitra to swamy Vivekananda and Sankaracharya to Sivananda taught their diciples morals and human values through their preachings and writings. Ramayana, Mahabharata, Sukaraneeti, Vidura Neeti, Neeti Satakam, Arthasastra of Chanukya and Tirukkural of Tiruvalluar contain morals and human values. Even modern world deals with several human values which includes business values, medical values, professional values, educational values and cyber values etc; according to the present social, cultural, religious and other sources to emphasis to the mankind in various ways.
Female Quest for Identity in Shashi Deshpande’s Novel: That Long Silencepaperpublications3
Novels of Shashi Deshpande abound in female quest for identity. Her novels are usually narrated by female protagonists
who strive to find out their own selves throughout the novels. Her heroines try to find out their identity through writing
and ultimately reach a resolution in their lives. They are haunted by memories of past and feel a kind of worthlessness,
but towards the end they realize their selves. This is one of the important needs and messages in today‟s world where
women are facing a void, vaccum in their lives. Though they appear to be successful outwardly, but they seem to lack
direction and feel a sense of futility. Shashi Deshpande‟s novels fit into such a scenario and help women realize their
potential in a positive manner. The quest for female identity has its roots in the patriarchal setup, where man is given
every kind of freedom.
MUSLIM BROTHERHOOD AND EGYPTIAN POLITICS (1954-2010) (A Lesson for Nigeria in...paperpublications3
Abstract: Religion and Politics play very important roles in the life of every individual and society, directly or indirectly, willingly or unwillingly. This is an indication that both are inevitable aspects of human existence. In the course of human history, however, there have been exaggerations of their influence in the polity. Sometimes, these roles have been translated into fundamentalism, violence, and fanaticism. Examples abound, and I like to use two countries to buttress my argument in this paper: the wrong interpretation and application of religion and politics in Egypt (where I lived and studied for two years, 2006-2008) and Nigeria where I am born and bred. It is a glaring fact that in Africa and in Nigeria particularly, Christianity and Islam have shown various faces of the above-mentioned ‘translations’ associated with religion and politics. Sometimes, they have allowed themselves to produce religious and political disorders – a complete opposite of what they are supposed to achieve in human society. It is my intention in this paper to consider the role of a particular group called the ‘Muslim Brotherhood’ in shaping the religious and political history of an African country called Egypt, and to use the development and possible misuse of the same and similar group in Nigeria to remind the citizenry of the dangers of religious extremism in the practice of democracy in a secular state. In the light of this, one cannot but mention the most recent ugly incident perpetrated by the Boko Haram sect in Northern Nigeria since 2009. It would therefore not be an exaggeration to maintain that if Boko Haram was a Brotherhood, it was simply an anomaly. At best, one can refer to it as a secret cult, detrimental to both religion and society. The world has witnessed its havoc in the last six years. Thus, it is my candid opinion that honest and genuine co-existence rooted in love and mutual acceptance of one another would enhance progress and development in Nigeria, and in the world as a whole. The globalized world cannot but co-operate to eradicate religious violence and fanaticism.
A Study of Betel Vine Cultivation and Its Market Crisis in Two Selected Block...paperpublications3
Abstract: The betel vine (piper betel) is a perennial climber, cultivated for its leaf. In the state of West Bengal it has been cultivated on an area of around 18690 hectare. Purba Medinipur has one of highest production of betel vine in West Bengal .In this district, the climber is cultivated in Ramnagar block-1, Ramnagar block-2, Tamluk, Contai-3, Nandakumar etc. This cultivation provides livelihood for numerous families for years. Two major varieties of betel vine grown are namely bangla; haldia etc .Betel vine is considered as highly labour intensive providing employment throughout the year both in the fields of production and marketing. The estimated annual net income of Ramnagar-I andRamnagar-II two blocks is Rs 36600 per 5 decimal lands.
Almost 60% people of these two blocks are engaged as farmers, labours and traders of betel vine. The present study is an attempt to study the cultivation process and market crisis of betel vine in these two blocks.
There is a clear indication that the profitability of crop can be further exported in the interest of the nation but country there is in this district lack of proper facilities of marketing of betel leaves.
Journalists Perception of Their Staff Welfare Package and Effective Journalis...paperpublications3
Abstract: The concern over the lamentation of several journalists in Nigeria on the poor welfare package given to them, coupled with the observation that so many journalists have resorted to receiving gratification to manipulate news reports so as to make ends meet informed the need for this study. Its objectives were to find out the effect of the staff welfare package on the journalists and to evaluate if whether or not the staff welfare package influences the quality of news reports in Nigeria. The survey research design was used to gather data from respondents of both The Guardian and Nigerian Television Authority (NTA). Some of the findings of this study were that majority of the respondents agreed that journalists had resorted to receiving gratification as a result of their poor pay and that adequate remuneration would give more balance and objectivity in news reporting. In conclusion based on the above findings, it can be said that journalists have a depleted perception towards their welfare packages. This research recommends after an intensive study that media owners should not stop at fulfilling its duties which is to motivate journalists through good and attractive welfare packages, so that this packages would encourage and drive them to stay on the side of truth, objective news reporting, fairness and give them courage to practice investigative journalism even in the face of intimidation and attacks.
Role of work life balance on employee productivity: a survey of commercial ba...paperpublications3
Abstract: Motivation of employees has always been quantified in financial attributes. For productivity to occur then there is need for using non-financial motivational initiatives. The banking industry has produced best trading results although characterized by lack of flexibility, high work pressure and longer working hours. This study purposed to analyze the role of motivational initiatives on employee productivity with specific reference to commercial banks in Bungoma County. The study was guided by the objective: to establish the role of Work life balance on employee productivity. The study adopted a survey design with a focus on 536 bank employees drawn from the different job cadres. A sample size of 229 was obtained using Yamane’s formula. Stratified sampling technique was employed with six strata’s obtained from six job cadres from top management to clerical staff. Structured questionnaires were the main data collection tools upon which analysis was undertaken using Statistical Program for Social Scientist (SPSS) where descriptive and inferential statistics was applied and thereafter presentations of findings was done using tables. The findings of the study indicated that effective work life balance leads to employee productivity r= .538 which was significant at p (0.00) < α (0.05). The study concluded that the non-financial motivation strategies influence employee productivity in commercial banks. The study recommends use of surveys and other evaluation methods to better understand the different needs of different employees to enable provision of customized work life balance.
The Organization and Direction of Human Resources for Set Goals: A Public Adm...paperpublications3
Abstract: Eventual development of the society at large depends on proper organization and direction of human factors with a view to promoting set goals. This underscores the fact that of all resources required for the advancement and promotion of public administration viz: capital resources, natural resources, material resources and technology. This study finds out that the most effective resources is that of human factor. The study employs the use of secondary source of data collection solely to drive home its argument.
Getting Smart About Smart Homes - MLS Tech Fair - 10.06.16Chad Curry
From MLS Technology Fair - MLS Long Island
Thursday, 10.06.16
The Internet of Things will transform how we do business on a daily basis. This presentation aims to cover the scope of this market and its impact real estate to items that make great closing gifts to what NAR's Center for REALTOR Technology is working on to help you in your business.
For more information, please visit https://crtlabs.org/. You can also follow us on twitter with the handle @crtlabs and Facebook at https://facebook.com/crtlabs - Office Hours on Facebook every Friday at 2p Eastern/1p Central.
The incorporation of the Rome Statute of the ICC into national law in South A...Fanus van Straten
The Rome Statute of the International Criminal Court is a multilateral international agreementor treaty. All states have the right to become parties to it. When a state does ratify or accede to it, it incurs international obligations to the other State Parties to the agreement. State Parties must ensure that their domestic laws enable them to comply with its international obligations. Failure adequately to provide for the international obligations is not only undesirable internationally but also domestically. The South African Parliament has incorporated the Rome Statute into national (municipal) law by passing the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. This is a commendable step in ensuring that its international obligations are met. Unfortunately, it appears that the scheme of arrest and surrender to the ICC provided for in the South African legislation to give effect to the Rome Statute is somewhat defective. There is no provision for any competent authority, whether a court or the executive branch of government, to issue an order of surrender. This defect should be remedied as soon as possible. Source - http://www.iss.co.za/pubs/ASR/12No4/F3.pdf
The document discusses trials held by international courts, including the trials of Saddam Hussein, Slobodan Milosevic, and cases handled by the International Criminal Tribunal for Rwanda. It provides background on the International Court of Justice and describes some of the major cases they have heard. Specifically, it outlines the charges against Saddam Hussein for crimes against humanity, the charges against Milosevic for genocide and crimes against humanity, and precedents set by the ICTR, including the first time rape was classified as genocide.
This document provides a guide to the African human rights system, specifically focusing on the African Charter on Human and Peoples' Rights which was adopted in 1981. It summarizes the history of the Charter, its key features, subsequent protocols that supplemented it, and institutions it established like the African Commission on Human and Peoples' Rights. The summary celebrates the progress the Charter has made in establishing human rights standards and mechanisms in Africa over the past 30 years since its adoption.
The Rome Statute of the International Criminal Court (ICC) is a treaty that established the ICC, the first permanent international criminal court to prosecute individuals for the most serious crimes Crimes that are considered of international concern include acts such as genocide,
https://lawlegal.me/rome-statute-1998/
NUREMBERG - Crimes Against Humanity/Crimes Against Peace (For TRANSLATION)VogelDenise
The document discusses the United States' potential violations of international laws and treaties related to crimes against humanity and crimes against peace as defined by the Nuremberg Principles. It provides background information on the definitions and historical development of these concepts, including their incorporation into the Rome Statute and International Criminal Court. The document calls for holding US heads of state and officials accountable for their alleged criminal acts under international law.
The Rome Statute established the International Criminal Court, which prosecutes crimes of sexual violence and recognizes acts of sexual and gender violence as crimes. It aims to protect witnesses and victims of such crimes and provide support programs. The statute was a result of debates between organizations and governments. It expanded the definition of sexual violence beyond rape and the ICC has taken on cases involving crimes of sexual violence to end impunity for such crimes during conflicts.
The document discusses extradition procedures in South Africa. It provides context on how state capture and lack of international agreements previously impacted extradition. The Extradition Act of 1996 expanded South Africa's extradition capabilities by allowing extradition in the absence of formal agreements and designating states for extradition. The document also discusses international human rights considerations, the roles of courts and judiciary in extradition cases, and how South Africa's extradition framework aligns with international obligations.
Report of the detailed findings of the commission of inquiry on the 2014 gaza...RepentSinner
The document contains the detailed findings of the independent commission of inquiry established to investigate violations of international law in the Occupied Palestinian Territory during Israel's 2014 military operations in Gaza. The commission was not granted access to Israel or the Occupied Palestinian Territory, but received cooperation from Palestine and testimony from victims via remote means. The commission applied international humanitarian law, human rights law, and criminal law in its investigation and analysis.
This document is an edited volume containing several articles on issues related to international criminal justice in Africa. It includes articles on prosecuting crimes related to Kenya's 2007 post-election violence, international criminal justice as it relates to peacebuilding in Africa, perspectives on extraordinary rendition from an African standpoint, challenges facing the International Criminal Court in Africa, lessons from South Africa on indirect enforcement of international criminal law, and reflections on the future of international criminal justice on the continent. The volume was published in 2016 and contains contributions from legal academics and practitioners from several African countries exploring contemporary topics in the field.
Ghetnet Metiku - The african court of justice and human rightsGhetnet Metiku
The planned merger of the human rights court and the yet to be established court of justice into an African Court of Justice and Human Rights is the focus of this paper. More specifically the potential challenges of establishing such a court are explored in some detail.
The rule of law underwent radical changes in post-apartheid South Africa following the adoption of the 1996 Constitution. While the Constitution and the Bill of Rights enshrined new rights and protections, their implementation has faced significant challenges. South Africa now has extremely high crime rates that threaten democratic progress. Prosecutors have played a role in navigating constitutional issues but have limited means to initiate challenges. There is a need to develop the limitation of rights concerning crime and to shift emphasis to victims' rights while maintaining a balanced justice system.
The Principle of Non refoulement as a Tool to Fight Extraordinary Rendition u...BROOK KEBEDE
The primary objective of this article is answering the question of when an African state is involved in extraordinary rendition activities and it affects the lives of individuals outside its sovereign territory, how the principle of non-refoulement will help us to establish extraterritorial responsibility pursuant to the African Charter to which this African state is a party?
Discusses the role the ICC has played in the fight to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression worldwide. Analysing whether the ICC is 'racist', and what African nations can do to address the apparent inequalities.
Presentation delivered at the African Heritage Studies Association Annual Conference, Howard University, DC, USA in November 2016
The delegation observed serious human rights issues in Egypt after the 2013 military coup including widespread arbitrary detentions, mistreatment of prisoners, and restrictions on freedoms of expression, assembly, and association. They met with government officials who acknowledged human rights are in peril due to social and violent conflict. Civil society actors attributed problems to the coup overthrowing the elected government in violation of political rights protected by international law. Particularly disturbing were widespread abuses against women and juveniles, including sexual abuse and interference with peaceful protest.
An Introduction to Criminal LawMultinational Criminal .docxgalerussel59292
An Introduction to Criminal Law
Multinational Criminal Justice
Globalization of crime and terrorism has required enhanced
international coordination of law enforcement efforts. The U.S.
efforts to thwart globalization of crime and terrorism include:Expansion of American law enforcement activities abroadPassage of the Trafficking Victims Protection Reauthorization Act (TVPA, 2003)Extradition Forcible removal of criminal suspects from foreign jurisdictions refusing extradition. http://www.fas.org/sgp/crs/terror/R41004.pdf
An Introduction to Criminal Law
The Globalization of Crime
Transnational crime partly stems from globalization—the internationalization of
trade, services, investment, information and other forms of human social activity.
As defined by the United Nations, transnational crimes are unlawful activities
undertaken by organized criminal groups operating across national boundaries and
include:Terrorism Drug traffickingMoney launderingAlien smugglingHuman and weapons traffickingFraud and corruptiontreaties.un.org/doc/source/RecentTexts/18-12E.doc
An Introduction to Criminal Law
Transnational crime
The United Nations classifies a crimes a Transactional crime if:
It is committed in more than one country.It is committed in one country but a substantial part of its preparation, planning, direction, or control takes place in another country.It is committed in one country but involves an organized criminal group that engages in criminal activities in more than one country.It is committed in one country but has substantial effects in another country.
www.un.org/News/Press/docs/2009/gashc3948.doc.htm - 97k
An Introduction to Criminal Law
Transnational crime (continued)
Comparative criminology is the cross-national study of crime.
Also, it compares crime patterns in one country with those in another and develops theories with increased specificity managing to construct them in such way they can applied across more than one culture or nation-state.
Comparative criminologists study crime on a cross-national level and use those studies to evaluate and improve the U.S. system of criminal justice.
Schmalleger, Frank (2009). Criminology Today: An Integrative Introduction (5th Edition). Columbus, OH: Prentice Hall. Page G-2
An Introduction to Criminal Law
Comparative Criminology
One major impediment to Comparative Criminology is the fact the United States is generally an “ethnocentric” culture. Ethnocentrism is the tendency to strongly believe a group's ethnic or cultural group is centrally important and all other groups are measured in relation to that group. Ethnocentric people critically judge other groups relative to his ethnic group, culture and norms. This is especially true in relation to one’s language, behavior, customs, and religion.
Ethnocentric cultures are often not open to considering or even in some case tolerating, research or ideas that are different to the accepted norm within that culture.
Anderson, M.
Jurisdiction active and passive personality, protective principle andAbsar Aftab Absar
The document discusses different principles of jurisdiction that states can exercise, including territoriality, nationality (active and passive personality), protective principle, and universal jurisdiction. It provides examples of how different states have applied these principles in national courts. The principles evolved to address transnational crimes and situations where territoriality alone was insufficient. Universal jurisdiction in particular remains an evolving principle that requires state consent through treaties or custom to apply to specific offenses.
The document provides background information on several international criminal tribunals and courts:
1. The Tokyo and Nuremberg tribunals prosecuted war crimes after World War II. The Tokyo tribunal tried Japanese leaders and had broader temporal jurisdiction than Nuremberg.
2. Other courts discussed include the International Criminal Court (ICC), European Court of Human Rights, Special Court for Sierra Leone (SCSL), and Extraordinary Chambers in the Courts of Cambodia (ECCC). These have jurisdiction over crimes against humanity, war crimes, and genocide.
3. Punishments vary by court but can include imprisonment, with some like the ICC unable to impose the death penalty. Jurisdiction and procedures
The document provides background information on several international criminal tribunals and courts:
1. The Tokyo and Nuremberg tribunals established after World War II to prosecute war criminals from Japan and Germany. They set precedents for international prosecution and defined war crimes, crimes against humanity, and crimes against peace.
2. The European Court of Human Rights ensures states comply with the European Convention on Human Rights. It decides complaints of human rights violations against states.
3. The Special Court for Sierra Leone prosecuted those bearing greatest responsibility for serious crimes during Sierra Leone's civil war. It had jurisdiction over international crimes and some domestic laws.
4. Other courts discussed include the International Criminal
Extradition within the CEMAC Sub Region Prospects and Perspectivesijtsrd
International co operation in criminal matters amongst states in the Central African Economic and Monetary Community CEMAC is a reality. However, this co operation is increasingly being threatened by weaknesses that fraught the existing extradition legal framework. Criminal offenders often misuse the lack of extradition treaties with other states to decide which state to flee to after committing crimes. The very nature of crime has been evolving, and the failure to bring fugitives to justice represents an acute problem to the party which has been wronged. However, there is no general rule of international law that requires a state to surrender fugitive offenders. This school of thought led to the development of the principle of non extradition of nationals fully practices within CEMAC. It is the right of a state to refuse the extradition of its own nationals. This creates a major challenge to law enforcement officials, for it is an opportunity for transnational criminals to find safe havens. Such a practice in a sub region experiencing the emergence of new crimes like terrorism, endemic corruption, money laundering and the financing of terrorism, weakens law enforcement given that it makes effective prosecution impossible. Also, an increase in the mobility of suspects has resulted in a greater enthusiasm of states to use cooperation to enforce their domestic criminal law. It is on this premise that this paper intends to examine how states within the CEMAC Sub region use extradition as a tool to combat transnational organised crime. The problems they encounter and probable solutions. Akuhfa Harriette | Akama Samuel Penda "Extradition within the CEMAC Sub Region: Prospects and Perspectives" Published in International Journal of Trend in Scientific Research and Development (ijtsrd), ISSN: 2456-6470, Volume-3 | Issue-6 , October 2019, URL: https://www.ijtsrd.com/papers/ijtsrd29191.pdf Paper URL: https://www.ijtsrd.com/other-scientific-research-area/other/29191/extradition-within-the-cemac-sub-region-prospects-and-perspectives/akuhfa-harriette
Similar to South Africa, the Rome Statute and the International Criminal Court Implications for President Omar al Bashir’s May 2015 Visit (20)
How to Build a Module in Odoo 17 Using the Scaffold MethodCeline George
Odoo provides an option for creating a module by using a single line command. By using this command the user can make a whole structure of a module. It is very easy for a beginner to make a module. There is no need to make each file manually. This slide will show how to create a module using the scaffold method.
How to Fix the Import Error in the Odoo 17Celine George
An import error occurs when a program fails to import a module or library, disrupting its execution. In languages like Python, this issue arises when the specified module cannot be found or accessed, hindering the program's functionality. Resolving import errors is crucial for maintaining smooth software operation and uninterrupted development processes.
How to Manage Your Lost Opportunities in Odoo 17 CRMCeline George
Odoo 17 CRM allows us to track why we lose sales opportunities with "Lost Reasons." This helps analyze our sales process and identify areas for improvement. Here's how to configure lost reasons in Odoo 17 CRM
Macroeconomics- Movie Location
This will be used as part of your Personal Professional Portfolio once graded.
Objective:
Prepare a presentation or a paper using research, basic comparative analysis, data organization and application of economic information. You will make an informed assessment of an economic climate outside of the United States to accomplish an entertainment industry objective.
Executive Directors Chat Leveraging AI for Diversity, Equity, and InclusionTechSoup
Let’s explore the intersection of technology and equity in the final session of our DEI series. Discover how AI tools, like ChatGPT, can be used to support and enhance your nonprofit's DEI initiatives. Participants will gain insights into practical AI applications and get tips for leveraging technology to advance their DEI goals.
A workshop hosted by the South African Journal of Science aimed at postgraduate students and early career researchers with little or no experience in writing and publishing journal articles.
ISO/IEC 27001, ISO/IEC 42001, and GDPR: Best Practices for Implementation and...PECB
Denis is a dynamic and results-driven Chief Information Officer (CIO) with a distinguished career spanning information systems analysis and technical project management. With a proven track record of spearheading the design and delivery of cutting-edge Information Management solutions, he has consistently elevated business operations, streamlined reporting functions, and maximized process efficiency.
Certified as an ISO/IEC 27001: Information Security Management Systems (ISMS) Lead Implementer, Data Protection Officer, and Cyber Risks Analyst, Denis brings a heightened focus on data security, privacy, and cyber resilience to every endeavor.
His expertise extends across a diverse spectrum of reporting, database, and web development applications, underpinned by an exceptional grasp of data storage and virtualization technologies. His proficiency in application testing, database administration, and data cleansing ensures seamless execution of complex projects.
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South Africa, the Rome Statute and the International Criminal Court Implications for President Omar al Bashir’s May 2015 Visit
1. ISSN 2349-7831
International Journal of Recent Research in Social Sciences and Humanities (IJRRSSH)
Vol. 2, Issue 4, pp: (20-35), Month: October - December 2015, Available at: www.paperpublications.org
Page | 20
Paper Publications
South Africa, the Rome Statute and the
International Criminal Court Implications for
President Omar al Bashir’s May 2015 Visit
Daglous Makumbe
(Dip.Ed. (UZ), BSc HAD (UZ) BSc HPOS (UZ) MSc IR (UZ)
Abstract: The May 2015 pulsating development in South Africa’s international legal history has shown the world
that for almost all African states, signing and ratifying statutes is one thing, and implementation is another. South
Africa was the last state standing, all international hopes being on South Africa that the government would arrest
Omar al Bashir if he sets foot in that country. Other African states that are signatories and ratifiers of the Rome
Statute had flinched from arresting and surrendering Bashir to the International Criminal Court, such as Chad,
Nigeria, Ethiopia, Eritrea, Djibouti, Malawi and Kenya. South Africa, which is regarded as a mature and stable
democracy in Africa, astonishingly followed the African Union’s unity in defiance action by surreptitiously letting
Omar al Bashir off the legal apocalyptic hook, violating its municipal and international legal provisions.
Considering that the African Union had openly disassociated itself from the International Criminal Court, and
South Africa speaking louder with actions rather than words, this paper moves that South Africa’s defiant action
finally exposed Africa’s legal decadence and constituted a dreadful miscarriage of international justice. Politically,
what the South African government did was commendable, but legally the government violated its municipal and
international law provisions. This action has also finally led to the death of the International Criminal Court in
Africa.
Keywords: South Africa, International Criminal Court, African Union’s unity, politically, international justice.
I. OVERVIEW
“There is nothing new about President al-Bashir attending African Union Summits ... the African Union does things
according to its own rules, not according to the rules of the International Criminal Court” – Doctor Nkosazana Dhlamini
Zuma – The African Union Commission Chairperson.
Sudan is not a signatory of the Rome State that created the international Criminal Court. The United Nations Security
Council (UNSC) whose powers were conferred to it by the Statute of Rome, referred the situation in Darfur (Resolution
1593), under chapter VII of the United Nations Charter leading to the indictment of Sudanese President Omar Hassan
Ahmad al Bashir on charges of war crimes and crimes against humanity. The Statute of Rome nullifies any form of
immunities for sitting and former state officials such as heads of states and government, whilst the Diplomatic Immunities
and Privileges Act of 2001, Section 5 (3) grants such immunities. The UNSC Darfur referral and the sending of arrest
warrants to President Bashir has caused a legal quagmire which has fermented up to the severance of relations between
the International Criminal Court (ICC) and Africa, reaching its political and legal apogee. South Africa, which signed and
ratified the Rome Statute, was legally supposed to abide by its municipal and international law regulations by arresting,
indicting or surrendering Omar al Bashir to the ICC upon his arrival in Johannesburg. The triumphant entry and exeunt of
President Bashir in and out of South Africa with impunity was a slap in the face and a stab at the back for the ICC, a court
that was already experiencing extensive legal polarization between itself and the African Union. The Darfur referral by
the UNSC thus brought matters to a tragic head as the legal impasse between Africa and the ICC has taken a nose dive.
3. ISSN 2349-7831
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Vol. 2, Issue 4, pp: (20-35), Month: October - December 2015, Available at: www.paperpublications.org
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Paper Publications
declining or being unable to do so, in line with the principle of complementarily as contemplated in the Statute, in the
International Criminal Court, created and functioning in terms of the said statute, and carrying out its other obligations in
terms of the said Statute …”5
Regrettably, the South African government in this case neither brought President Bashir to a court of law in South Africa
nor was committed to its obligations to bring such a perpetrator to book in its municipal courts as stipulated by the Rome
Statute‟s complementarity principle. The Republic of South Africa‟s National Prosecuting Authority (NPA) was also
impotent to expedite the indictment of President Bashir. It can thus be asserted that South Africa‟s action constituted
unwillingness to arrest and prosecute Omar al Bashir. Since this was South Africa‟s first acid test to arrest and prosecute
a perpetrator of international crimes of an egregious nature, the government can no longer be trusted in future and reliance
can therefore not be placed upon South Africa to prosecute heinous international crimes.
The Preamble stipulates that South Africa has an international obligation under the Statute of Rome to bring the
perpetrators of nefarious crimes to book in a South African court under municipal law where possible. The provision
makes it clear that it favours the prosecution of international crimes, if needs be domestic prosecution in South Africa.
The Act seeks to achieve, inter alia, the following aims:
The first object of the Act recorded in section 3 (a) is to create a framework to ensure that the Rome Statute is
effectively implemented in South Africa.
The second object of the Act recorded in section 3 (b) is to ensure that anything done in terms of the ICC Act
conforms to South Africa‟s obligations under the Rome Statute, including its obligation to prosecute the perpetrators
of crimes against humanity referred to above.
Another object of the Act recorded in section 3 (d), is to enable South Africa‟s NPA to prosecute and the higher courts
to adjudicate in cases against people accused by having committed crimes against humanity, both inside South Africa
and beyond its borders.6
All these above provisions were violated by the government of South Africa when President Bashir visited the country,
allegedly tainted with illegality of egregious crimes against humanity and war crimes. South Africa‟s quest to effectively
implement the Rome Statute under these circumstances therefore naturally falls away. Although any prosecution under
the ICC Act may only be brought with the consent of the National Director of Public Prosecutions (NDPP), he is obliged
in terms of Section 5 (3), when he considers whether to institute such a prosecution, to: give recognition to the obligation
that the Republic, in the first instance and in line with the principle of complementarity as contemplated in article 1 of the
Statute, has jurisdiction and the responsibility to prosecute persons accused of having committed a crime.7
Section 4 (1)
of the ICC Act creates jurisdiction for a South African court over ICC crimes by postulating that, “[d]espite anything to
the contrary in any other law of the Republic, any person who commits (an ICC) crime, is guilty of an offence and liable
on conviction to a fine or imprisonment”.8
The South African government however legally misfired by shielding
President Bashir. The government neither fined him nor imprisoned him, making a mockery of the Rome Statute that the
government had promised to abide by.
Section 4 (3) of the Act provides for extra-territorial jurisdiction, which is also embedded in both territorial and national.
That section stipulates South African courts will exercise their jurisdiction if a person commits an ICC crime outside the
territory of the Republic of South Africa (nationality principle), and:
a) That person is a South African citizen (nationality); or
b) That person is not a South African citizen but is ordinarily resident in the Republic (national and territorial principles)
What the ICC Act does is to provide South Africa an opportunity – on the established basis of universal jurisdiction – to
prosecute ICC crimes by its courts acting as an international surrogate for the ICC. It will be recalled that the ICC Act
secures for a South African court jurisdiction over ICC crimes committed by a person outside South Africa where, in the
5
Cited in Ibid, 1
6
Ibid, 1
7
Ibid, 1
8
Ibid, 1
4. ISSN 2349-7831
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wording of the section, “that person, after the commission of the crime, is present in the territory of the Republic”. (ICC
Act 2002: Section 4 (3) (c).9
Regrettably, this is the complete opposite of what the South African government did by
ignoring the arrest and trial of President Bashir who was actually present in the territory of the Republic. The South
African government thus declined to make its municipal judicial institutions to act as surrogate courts of the ICC and
hence breached the complementarity principle.
The concept of universal jurisdiction is well elucidated by Abi-Saab (2003), an international lawyer, who explains the
concept of universal jurisdiction in relation to the international crime of piracy. Saab notes that Piracy is a criminal act
that takes place in a space where there is no overall territorial sovereign. A state captures the pirate on the high seas or in
its national waters. It may have no other connecting factor with the act of piracy or the pirate (not being a state of
nationality of the pirate or of the flag of attacked ships or of the victims) except for being the place of capture, the forum
deprehensionis. But the criminal acts are considered as injurious to the community at large, in view of the paramountcy
of the perceived common interest in the security of maritime communications since the age of discoveries. In these
circumstances, the state of capture is authorised, in spite of the absence of any of the traditional connecting factors, to
prosecute the pirate, because it would not be acting in its own name uti singulus (which requires a special interest), but in
the name of the community”. (Abi-Saab, 2003: 599-600).10
It is thus the act of capture, in the forum deprehensionis, that
provides the state with the competence under international criminal law to prosecute the offender.11
The South African government also breached the public interest international legal norm by its failure to arrest and
prosecute President Bashir. The fact that ICC crimes are the most egregious of all worldwide and the mother of all
crimes, and given their devastating and destructive effect on peace and security, it appears that an investigation or
prosecution of ICC crimes under the ICC Act should ordinarily follow and there must be convincing reasons of public
interest to thwart such action by the prosecuting arm of government. It appears that in the South African situation there
was no such compelling reason(s) to prevent such prosecutorial action. In deciding on what is in the public interest an
overriding consideration ought to be the gravity of crimes such as genocide, crimes against humanity and war crimes,
their universal condemnation and the international community‟s commitment to repressing them ...Similarly, south
Africa‟s interest in not becoming a „safe haven‟ for perpetrators of such crimes should form part of the overall „public
interest‟ in prosecuting such crimes.12
Therefore, South Africa can be justifiably said to have violated the public interest international legal norm because the
world in general and South Africa in particular, there was public outcry and anticipation that President Bashir would meet
justice upon his arrival at Oliver Tambo International Airport. By ignoring the arrest of Bashir, this decision was ultra-
vires South Africa‟s municipal and international legal provisions and also a grave violation of the public interest norm.
III. COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT
Under Part IX of the ICC Statute, States parties are obliged to cooperate fully with the court and to ensure that there are
procedures available under their national law for all the forms of cooperation which are specified in part IX. Broadly
speaking the South African ICC Bill aims at setting out the required national procedures for facilitating cooperation with
the ICC in the two specified categories of judicial assistance with the arrest and surrender of persons in terms of article 89
and the areas of assistance in relation to investigations or prosecution covered by article 93 of the ICC statute13
For the
Republic of South Africa, this mandatory provision was again breached by the failure to arrest President Bashir. The
Republic thus failed to cooperate with the court. The government neither provided any judicial assistance with the arrest
and surrender of President Bashir, nor the provision of assistance in relation to investigations or prosecution covered by
Article 93 of the Statute of the ICC.
As far as foreign heads of states and other dignitaries are concerned, immunity for official acts is regulated by the Foreign
States Immunities Act 87 of 1981. However the immunity envisaged by this Act is unlikely to find application in cases
9
Ibid, 1
10
Cited in Ibid, 1
11
Ibid, 1
12
Ibid, 1
13
Strydom, H. 2002. “South Africa and the International Criminal Court”. Max Planck Yearbook of United Nations Law, Volume 6,
345-366
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involving crimes under international law and committed by foreign government officials with the result that an
amendment to the Immunities Act to reflect current developments in international criminal law is something the South
African authorities ought to consider.14
In this case, the South African government has already granted immunity in
advance to all heads of state and government attending the 25th
AU Summit, including President Bashir who was facing
charges for international crimes.
Cooperation with the ICC in Enforcing Sentences:
The Rome Statute stresses that, “States Parties should share the responsibility for enforcing sentences of imprisonment, in
accordance with principles of equitable distribution”.15
The ICC will have no prison, and states are therefore expected to
volunteer their services, indicating their willingness to allow convicted persons to serve the sentence within their domestic
penal institutions.16
However, if no state offers or is ready to offer prison services to a convicted and sentenced
perpetrator, the host state of the ICC (The Netherlands) will offer the prison services as according to Article 103 (4) of the
Statute of Rome. South Africa does not have prisons that meet international recommended standards. Its prisons are
squalid and overcrowded. If Bashir was arrested and convicted in South Africa, he was possibly going to serve his prison
term elsewhere. The ICC Act of 2002 Section 31 provides that the Ministry of Correctional Services must consult with
the cabinet and seek the approval of parliament with the aim of informing the ICC whether south Africa can be placed on
the list of states willing to accept sentenced persons.
If the Republic of South Africa is thus placed on the list of states and is designated as a state in which an offender is to
serve a prison sentence, then such a person must be committed to prison in South Africa. The provisions of the
Correctional Services Act III of 1998 and South African Municipal law then apply to that individual. South Africa could
thus have opted to institute litigation for President Bashir in its municipal courts. Because its prisons do not match the
required international standards, it could have made Bashir serve his prison term in The Hague or elsewhere, if convicted.
All these options were systematically evaded by the South African government when it ignored the arrest of President
Bashir, letting the cat out of the bag.
IV. THE ROME STATUTE’S STANCE ON IMMUNITIES
The Rome Statute does not regard any form of immunities for anyone be it a sitting or former state official. Article 27 of
the Statute of Rome stipulates that, “official capacity as a head of state or government, a member of a government or
parliament, an elected representative or a government official shall in no case exempt a person from criminal
responsibility under this Statute”. South African municipal law has also got into this international law groove by adopting
the Rome Statute‟s tough stance by stipulating in Section 4 (2) (a) of the ICC Act that, “notwithstanding ... any other law
to the contrary, including customary and conventional international aw, the fact that a person ... is or was a head of state
or government, a member of a government or parliament, an elected representative or a government official ... is neither –
(i) a defence to a crime, nor (ii) a ground for any possible reduction of sentence once a person has been convicted of a
crime”.
Basing on this Act therefore, the South African courts are thus conferred with the same power under the Rome Statute‟s
complementarity principle to trump the immunities which usually are conferred to government officials by virtue of
Article 27. President Bashir, as a sitting head of state, thus had no immunity basing on Article 27 of the Statute of Rome
which nullifies any form of immunities for state officials or government representatives. He was this liable to arrest upon
arrival at Oliver Tambo International Airport, and this is a legal obligation that the South African government ignored
wantonly. Article 27 of the Statute of Rome seems to be scrapping off customary international law which traditionally
grants immunity to current and former state officials. This therefore gives problems as to which legal course to pursue,
implementing the Rome Statute (Article 27) on one side, whilst nullifying customary international law provisions on
immunities in municipal jurisdictions, or nullifying Article 27 of the Rome Statute whilst upholding customary
international law which upholds immunity to current and former state officials. States may thus be caught in a legal limbo
as to which legal course to pursue.
14
Ibid, 13
15
See Article 103 (3)(a) of the Rome Statute as well as Rule 201 of the Rules of Procedure and Evidence
16
Schabas, W.A 2007. An introduction to the International Criminal Court (3rd
Ed). Cambridge: University Press.
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Dugard and Abraham have pointed out that Section 4 (2) (a) of the ICC Act represents a choice by the legislative to
wisely not follow the „unfortunate‟ Arrest Warrant decision, „of which it must have been aware‟. Support for an argument
that Section 4 (2) (a) of the ICC Act does indeed scrap immunity, notwithstanding the contrary position under customary
international law, comes from the constitution itself. Section 232 provides that „[c]ustomary international law is law in
the Republic unless it is inconsistent with the constitution or an Act of Parliament.17
South Africa therefore by ignoring
the arrest of President Bashir seemed to regard customary international law which affords immunities to state officials
rather than the Statute of Rome which scraps such immunities. The action may also be construed as consolidating the
view that customary international law is really law in the Republic and is not inconsistent with the Republic‟s constitution
or an act of parliament. It cannot thus be supplanted, overridden or nullified by Article 27 of the Statute of Rome.
V. THE INTERNATIONAL CRIMINAL COURT AND SUDAN
In 2005, the UNSC passed Resolution 1593 which referred the Sudanese situation to the ICC. Top of the list was the
Sudanese President Omar Hassan Ahmad al Bashir. Firstly, it is the first time a sitting president has been investigated for
international crimes before the ICC – an investigation made possible because Article 27 (1) of the Statute of Rome
provides that functional immunity does not apply to any individual before the ICC, and this is specifically directed to
heads of states and governments. Functional immunity denotes the acts of officials whilst they are still occupying the
highest offices, and this may be upheld even if they leave office. It will thus survive cessation of office.18
Other
Sudanese government officials who are in the ICC indictment encourage are Bahr Abu Garda, Abdallah Banda, Ahmed
Haroun, Saleh Jerbo and Ali Kushayb.
President Bashir, who is on the indictment vanguard, was indicted on five counts of crimes against humanity and two
counts or war crimes in regard to the situation in Darfur. He was further charged with three counts of genocide on 12 July
2010. He is accused of intending to partially destroy the Fur, Masalit and Zaghawa ethnic groups by killings, „causing
serious bodily or mental harm, and deliberately inflicting conditions of life calculated to bring about physical
destruction.19
Article 27 (2) of the Statute of Rome, as earlier noted, stipulates that the traditional doctrine of personal
immunity for sitting executives does not apply. There is a strong intellectual view that all states, whether parties or non-
parties to the Rome Treaty but bound by the UN Charter, are mandated to accept the jurisdiction of the ICC if conferred
by the UNSC. Therefore, the UNSC‟s decision to confer jurisdiction to the ICC is in consonant with the Rome Statute.
Another perspective on how Article 27 can be interpreted is to view it as offering waiver of immunity to officials of non-
states parties such as Sudan and USA. The head of state of a non-state party such as Sudan or Israel thus might be entitled
to such immunity under customary international law. On the contrary, heads of states which are states parties to the
Statute of Rome such as Uganda or the Central African Republic cannot claim such immunity. It has led to the debates
over the correct interpretation of the relationship between Article 27 and Article 98 of the Rome Statute. It appears the
debate is far from over, and will continue until the ICC or the International Court of Justice (ICJ) gives a definite ruling.20
Article 98 further stipulates that a state is not obliged to hand an individual over to the court if doing so would be
inconsistent with its obligations under international law with respect to the state or diplomatic immunity of a person ... of
a third state, unless the court can first obtain the cooperation of that third state for the waiver of the immunity. In this
regard, Sudan can never surrender President Bashir to the ICC since he is the head of state and government and performs
sovereign functions of the state. Arresting and surrendering him to the ICC will negatively affect the state‟s sovereign
functions since the president and the state are inseparable in this regard.
In order to harmonize between Article 98 in order to give some life to Article 27, domestic courts have to strike a balance
between the needs of international justice and the need to maintain stable international relations. In order to strike this
17
Dugard, J and Abraham, G. 2002. Public International Law annual Survey of South African Law, in du Plessis, M. 2008. “South
Africa‟s International Criminal Court Act. Countering Genocide, War Crimes and Crimes against Humanity”. Institute for Security
Studies Paper 172.
18
Williams, S. and Sherif, L. 2009. “The Arrest Warrant for President al-Bashir: Immunities of Incumbent heads of State in the ICC”
The Journal of Conflict and security Law, 3 (5), 61-84.
19
Ibid, 18
20
Du Plessis, M. 2010. “International Criminal Courts, the International Criminal Court, and South Africa‟s Implementation of the
Rome Statute”, in Dugard, J. 2010. International Law: a South African Perspective. Cape Town: Juta and Company.
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balance, Simbeye suggests that, “Domestic systems will have to review the situation in three stages. The first stage
involves a look at international crimes and the second, an analysis of immunities. The third and last stage involves
determining which takes precedence: immunities or international crimes. In doing so it is proposed that a foreign
domestic court with the temporal custodial enforcement jurisdiction will conclude that it does not have the jurisdiction to
arrest and surrender a sitting head of state or government or foreign minister nor will the courts of a receiving state”.21
For the African member states in general and South Africa in particular, it can be pellucidly asserted that they have taken
this stance proposed by Simbeye. Immunities have taken precedence rather than international crimes. The South African
government, in light of this immunity for officials, had actually granted immunity in advance to all heads of states and
government who were attending the 25th
AU Summit in South Africa. During and after the Summit, AU member states in
general and South Africa in particular did not arrest, let alone surrender President Bashir to the ICC. For Africa, this
therefore means that solidarity and immunities are more preferable than justice.
VI. THE INDICTMENT OF PRESIDENT OMAR AL BASHIR: BACKGROUND
The United Nations Security Council Darfur Referral: Resolution 1593:
The UNSC referred the situation in Darfur, Sudan, to the ICC on 31 March 2005. The United States did not exercise its
veto power as many expected, but simply abstained from voting. This gave the ICC the jurisdiction to intervene and
prosecute crimes allegedly perpetrated in Darfur. With the United States not pushing their opposition to the Court to the
point of blocking the Security Council‟s referral of the Darfur case, the ICC made an important move from academic
exercise to legal reality.22
It is important to note that an abstention is not tantamount to a veto. An abstention simply
means that a state does not cast its vote and refrains from voting. This is different from a veto whereby a state blocks a
decision by its veto power so that a resolution is barred from being implemented. In a veto, the decision does not go
forward as it is blocked, but in an abstention the decision moves forward. The decision by the US State Department to
abstain rather than to veto marked a great milestone towards the furtherance of the ICC‟s work, although it did not mean a
change of US policy towards the court.
Crimes Perpetrated in Darfur:
By virtue of being a member of the United Nations (Sudan), the ICC has jurisdiction to prosecute crimes perpetrated in
Darfur concerning a debilitating ethnic violence that enveloped the country, leading to the deaths of at least 300 000
people. Sudan is not a signatory to the Statute of Rome but is a member of the United Nations. This means that the
UNSC can refer situations to the ICC over breaches of international peace and security anchored on Chapter VII of the
UN Charter. Article 13 (b) of the Statute of Rome states that, “The ICC may exercise jurisdiction in a situation in which
one more of such crimes appears to have been committed is referred to the prosecutor by the Security Council acting
under Chapter VII of the Charter of the United Nations”.23
Where the ICC obtains jurisdiction over a case by virtue of
such a Security Council referral, its jurisdiction is considered much stronger and truly universal, rendering irrelevant the
consent of the state where the crime occurred.24
The Sudanese atrocities have been described as one of the greatest humanitarian disasters on earth. Ethnic violence
erupted in Darfur, claiming more than 700 000 civilian lives and displacing about 1.8 million people in catastrophic
proportions. However, some scholars and researchers say that these statistical figures are exaggerated just to make the
issue more scaring and savage. The perpetrators of the murderous acts are allegedly government – backed militias of
Arab origin whilst the victims of the gruesome experiences were back African tribes. The report of the International
Commission to the UNSC in January 2005 concluded that although it did not ascertain or validate that genocide had been
perpetrated in Darfur, there were however serious crimes of international concern that have been perpetrated in Darfur
such as crimes against humanity and war crimes. This led the International Commission to recommend that the UNSC
refer the Darfur situation to the ICC.
21
Simbeye, Y. 2004. Immunity and International Criminal Law. California: Ashgate Publishing Company.
22
Fletcher, G. and Olin, D. 2005. “Reclaiming Fundamental Principles of Criminal Law in the Darfur Case”. The Journal of
International Law, 531, 561.
23
All states that are members of the United Nations are bound by the UN Charter, whether states parties or not to the Rome Statute.
Therefore they indirectly become states parties to the Rome Statute. This is because of the Rome Statute‟s attachment and conferment
of some of its powers to the UN Security Council.
24
Heyder, C. 2006. “The NSC Referral of the Crimes in Darfur to the international Criminal Court in Light of US Opposition to the
Court: Implications for the ICC‟s Functions and status”. Berkeley Journal of International Law, 24 (2), 650-673.
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The UNSC on March 31, 2005, passed the Darfur referral unanimously with eleven votes in favour of the referral and
none against it. However, there were four abstentions (United States, China, Brazil and Algeria). Instead of referring the
Darfur situation to the ICC, the United States preferred the establishment of an ad hoc criminal tribunal. This US
perception, which conflicted with other states‟ perceptions, seemed to pose a behemoth hindrance to the on-going
negotiations to bring the perpetrators to justice. The Darfur situation is the third case on the docket of the ICC, but the
first in which the Court‟s jurisdiction is premised on a Security Council referral pursuant to Article 13 (b) of the Statute of
Rome.25
Considering the fact that the ICC is a very young, still untested, and controversial court, the referral of
jurisdiction from the Security Council was crucial for the court as an institution in order to prove its ability to prosecute
the most serious crimes. A failure to refer this case would consequently have prompted the question of whether the ICC
could ever exercise universal jurisdiction in any case other than those in which State Parties had consented to jurisdiction.
While such a failure might have left the institution‟s legitimacy intact, it nonetheless would have marginalised the Court
and cast doubt on any hopes of its becoming an important instrument for ensuring global accountability for the most
serious crimes.26
VII. COOPERATION OF NON-STATES PARTIES TO THE STATUTE OF ROME
The Resolution conferring jurisdiction to the ICC was made by the UNSC acting under Chapter VII and on behalf of the
global community of states. However, paragraph 2 of Resolution 1593 states explicitly that, “Only the government of
Sudan and other parties to the conflict have to „cooperate‟ fully with and provide any necessary assistance to the Court
and the Prosecutor pursuant to this resolution”.27
This means that only the government of Sudan and the other parties to
the conflict are under the obligation to cooperate with the ICC. In contrast, the provision stipulates that all other states are
merely urged to cooperate. This means that, on one hand, the intentional community has mandated that the ICC to
exercise jurisdiction; but that, on the other hand, states that are not party to the Statute of Rome, except for Sudan have no
obligation to cooperate or support the ICC in fulfilling this task. This contradiction, inherent in the Security Council‟s
logic, is hardly understandable.28
The best alternative that the UNSC could have done is to impose obligations on all
states such that they would be obliged to cooperate and feel involved as well as having a sense of legal belonging to the
Court‟s Darfur referral.
According to the Rome Statute, not all states are obliged to cooperate with the ICC. This provision may weaken the
Court‟s position pertaining compelling the Sudanese government to bring perpetrators of awful crimes to the ICC. In the
present situation, the Sudanese government could use the lack of universal cooperation as another argument to challenge
the legitimacy of proceedings and as a pretext to refuse to surrender suspects.29
President Bashir swore thrice in the name
of Allah that he will never surrender any Sudanese national to the ICC. Given this vehement Sudanese opposition to the
Court, the United States pessimistic stance towards the Court as well as the AU‟s aversion to the Court, it becomes
abundantly clear that only a few perpetrators of heinous crimes from such states will ever appear before the ICC for
prosecution.
Immunity for Non-States Parties to the Rome Statute:
A treaty is invalid if it creates an obligation for a third state to which it never consented. By referring the Darfur case to
the ICC, the Security Council used its powers to extend the Court‟s jurisdiction beyond that allowed under a traditional
state consent regime and consequently conferred jurisdiction over a non-consenting state.30
Article 12 of the Rome Statute
really presents a violation of international treaty law as set out in Article 34 of the Vienna convention of treaties. Article
34 of the Vienna Convention of treaties stipulates that, “A treaty does not create either obligations or rights for a third
state without its consent”.31
Sudan is not a state party to the Statute of Rome and therefore according to the US position,
such crimes of genocidal proportions that were perpetrated in Darfur were supposed to be handled by an ad hoc
international criminal tribunal rather than an ICC.
25
Ibid, 24
26
Ibid, 24
27
See Resolution 1593, 2005
28
Ibid, 26
29
Ibid, 28
30
Ibid, 29
31
See the Vienna Convention on the Law of Treaties.
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VIII. OMAR AL BASHIR’S MAY 2015 VISIT TO SOUTH AFRICA
The African Union had abundantly made its position clear regarding the ICC. At an AU meeting in Sirte, Libya, on 3 July
2009, the AU took a resolution popularly known as the Sirte Resolution calling for its members to collectively defy the
international arrest warrants issued by the ICC for President Bashir. While Africa had enthusiastically embraced the
concept of a universal court that would pursue global justice without fear or favour, its states forming the largest regional
block within the new court, the continent had come to realize it had been sold a false bill of goods. Despite having
received more than 9 000 complaints of war crimes, and crimes against humanity within 139 countries, the ICC had
avoided dealing with any alleged western or European war crimes, preferring instead to focus exclusively on Africa. For
many Africans the spectra of a court based in The Hague and largely funded by Africa‟s five former European colonial
powers resembled recolonisation by spurious legal diktat.32
South Africa: Not the Odd One Out:
South Africa did not break any new ground by ignoring ICC and NGOs‟ calls to arrest and indict President Bashir. In
fact, South Africa becomes the eighth state party to the Statute of Rome to ignore the arrest and indictment of President
Bashir. President Bashir visited states parties to the Statute of Rome such as Kenya, Ethiopia, Eritrea, Chad, Djibouti,
Nigeria, Malawi and lately South Africa, with impunity. In almost all the summits President Bashir attended, African
heads of states and government had unanimously agreed that African states were not to help, let alone assist or cooperate
with the ICC concerning the arrest and surrender of President Bashir. In an abridged version of the AU statement to the
ICC, the AU vividly noted that the ICC‟s request to the AU to arrest and surrender President Bashir to the ICC had neither
been heard nor acted upon. The AU had instead requested the UNSC to defer the ICC investigation for a year by
invoking Article 16 of the Statute of Rome which allows for a suspension of prosecution or investigation, in a process
called deferral.
Article 16 empowers the Security Council to defer an investigation or prosecution for one year if it is necessary for the
maintenance of international peace and security under Chapter VII of the UN Charter. The Security Council would need
to make a determination that the continued involvement of the ICC is a greater threat to international peace and security
than suspending the ICC‟s work.33
South Africa, which is regarded as a mature and stable democracy in Africa and one
of the African states on the vanguard in supporting the ICC, was legally obliged to lead by example by arresting and
indicting President Bashir. Regrettably, the government of South Africa did the exact opposite. South Africa is a
regional power within Africa with diplomatic influence well beyond the continent; as such, the South African
government‟s decision to ignore the vehement calls to arrest the Sudanese leader came as a heavy body blow to the ICC.34
Thus, the ICC was legally pummelled and defeated by South Africa, considering that South Africa was the first African
state to ratify the Rome Statute and one of the greatest supporters and funders of the Court. The ICC had regarded South
Africa as an ally. The incumbent ICC chief Prosecutor Fatou Bensouda had appraised South African efforts by remarking
that, “South Africa was one of the strongest supporters of the court, and a leading funding member.35
South Africa: Deeds not Words:
The South African government turned a blind eye to the rambunctious calls to arrest President Bashir as the government
walked its talk. The African Union at the Sandton Convention Centre made its position abundantly clear that it does its
own things using home-grown solutions and not imported solutions. The African Union Commission chairperson Doctor
Nkosazana Dhlamini Zuma noted that, “There is nothing new about President al Bashir attending African Union summits.
Sudan is a member of the African Union and has always attended African Union summits ... the African Union does
things according to its own rules, not according to the rules of the International Criminal Court”.36
Unbeknown perhaps to the Southern African Litigation Centre and ICC supporters, the host country South Africa had
done its homework and it was perfectly clear. They had ensured al-Bashir‟s safe trip and passage into the country for the
summit. President Mugabe has gone so far as to place on record that President Zuma assured his colleagues prior to the
32
Hoile, D. 2015. “Al-Bashir, the ICC and “coconut” NGOs”. New African, July, p34-36.
33
Ibid, 20
34
Ibid, 32
35
Cited in ibid, 32
36
Cited in ibid, 32
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summit that al-Bashir would not be arrested. Ahead of the summit, the South African government had gazetted that all
participants at the AU meeting receive immunity in accordance with Section 5 (3) of the Diplomatic Immunities and
Privileges Act of 2001, which gave the government the power to gazette any arrangement around diplomatic immunity to
delegates to meetings of international bodies in South Africa.37
The South African government had already done its homework with great dexterity and craft well in advance. It sought to
implement deeds, not words. President Bashir was surreptitiously let in and out of South Africa without any public or
adversary knowledge of his exact whereabouts. The SALC managed to obtain an interim order that President al-Bashir
should not leave South Africa until the arrest warrant issue had been tested in a full court hearing. That hearing was set
for the afternoon of Monday 15 June. The reality is that Al-Bashir‟s itinerary had already been set in stone. Al-Bashir
arrived as scheduled on the evening of Saturday 13 June for the summit and attended the opening and its closed sessions,
and then left on schedule just before midday on Monday 15 June, flying out of Pretoria‟s Waterkloof Airforce Base.
Tellingly, several other heads of state had already left. The South African government very pointedly ignored that court
order.38
The visit of President Bashir in and out of South Africa with impunity had the support of the ruling ANC government as
well as South African religious bigwigs who had also grown a strong aversion to the court. The ruling ANC party had
previously declared that the ICC was, “No longer useful to the purposes for which it was intended”39
and that either every
UN member state should join or South Africa would leave. Former Archbishop Desmond Tutu‟s Tutu Foundation vividly
castigated the unwillingness of the Court to prosecute western involvement in heinous crimes against humanity and war
crimes. The Tutu Foundation stated that the world “needs a criminal court where all are held equally to account,
regardless of their nations‟ wealth, geographic location or particular history. By refusing to submit to the jurisdiction of
the court, some of the most powerful nations in the world have created an environment in which no world leaders feel the
need to be held to account”.40
In the same footing, former Archbishop Desmond Tutu went on to say that, “A court that cannot uphold the principle of
all being equal before the law lacks integrity. The reason that the ICC is battling is neither Africa‟s nor the court‟s faulty;
African nations and lawyers played prominent roles in establishing the court, in 2002. The reason the ICC is battling for
integrity is because some of the most powerful nations in the world would rather there was no court than one that might
one day hold them to account too”.41
Under these circumstances, the ICC‟s credibility in Africa is now very dim, casting
the court‟s legitimacy in jeopardy. The international community is faced once again by a simple question. What
relevance does the ICC retain in Africa within which so many countries refuse to recognize its authority? It is a question
that can no longer be ignored”.42
South Africa: Caught Between the Lines:
South Africa is caught in a legal quandary between two options; paying allegiance to the ICC on one side and the African
Union on the other. South African High Court Judge, Justice Malala notes that, “While this stance may have endeared the
country to the rest of the African Union – where it seeks to be a signification player – it reveals a troubling contradiction:
signatory to the Statute on one hand, while flirting with those who seek to defy its precepts on the other. This isn‟t the
first time the country has displayed its ambivalence towards the ICC: in 2010 South Africa invited Bashir to the now
scandal –mired world cup, attracting plaudits from some on the continent and gaining street cred for shaking its fist at the
west”.43
This South African stance is further consolidated by the earlier AU decision which included South Africa as a
state party) in the Sirte Resolution of 3 July 2009 whereby AU members unanimously defied the international arrest
warrant by the ICC to President Bashir. Tladi notes that, “This AU decision placed African states party to the Rome
Statute in the „unenviable position of having to choose between their obligations as member states of the AU on the one
hand, and their obligations as states party to the Rome Statute, on the other”.44
37
Ibid, 32
38
Ibid, 32
39
Ibid, 32
40
Cited in Ibid, 32
41
Cited in Ibid, 32
42
Ibid, 32
43
Malala, J. 2015. “By Letting Omar al-Bashir escape, South Africa has sided with tyrants”. Guardian Africa Network, pp1-5.
44
Tladi, D. 2009. “The African Union and the International Criminal Court: the battle for the soul of International Law” 34 SAYIL.
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Omar al-Bashir’s May 2015 visit Did South Africa breach its Municipal and International Legal Obligations?
Legally, South Africa really breached its municipal and international legal provisions. The state trampled on what it was
supposed to do, that is, to act in accordance with the Rome Statute for which it had signed and ratified, by arresting and
indicting Omar al- Bashir. The breach by South Africa was premeditated and deliberate. Justice Malala notes that, “The
events unfolded like a John Carre novel: just minutes before South Africa‟s President Jacob Zuma delivered his opening
address on Sunday to the AU summit in the glitzy Sandton Convention Centre in Johannesburg, the Pretoria High court
ordered that the government should ensure that Bashir could not leave the country”.45
The government thus knew in
advance of the intention of the court to execute its arrest warrant, and this is what it ignored, breaching its own laws.
Justice Malala further consolidates this position by remarking that, “In effect, the South African government has broken
its own laws and acted in defiance of a court order”.46
A government lawyer, William Mokhari, told the court that
Bashir‟s departure will be fully investigated. But that is academic. The government did nothing to arrest him.
Politically, this much we know: by protecting Bashir and letting him escape, our country has openly taken sides with
Africa‟s tyrants, and not their victims.47
Kaajal Ramjathan, SALC group director also adds that, “The rule of law,
however, is only as strong as the government which enforces it. Home affairs have allowed a fugitive from justice to slip
through its fingers, compounding the suffering of the victims of these grave crimes”.48
Similar sentiments of the state‟s
breach of its domestic and international law regulations are echoed by High Court judge Justice Dunstan Mlambo who
remarked that the government‟s reluctance to arrest Omar al Bashir is inconsistent with its constitution. Mlambo noted
that, “If the state ... does not abide by court orders, the democratic edifice will crumble stone-by-stone until it collapses”.49
The director of the Centre for Constitutional Rights, Johan Kruger, suggests that South Africa violated its municipal and
international laws because it signed and ratified the Statute of Rome. Kruger notes that, “Even though it‟s understandable
the government needs to maintain diplomatic relations with African countries, the point remains that in our country the
constitution is supreme – the government has to act according to the constitution. What is even more concerning is that
South Africa tries to argue immunity for crimes against humanity? Regardless of whom the leader may be or what the
diplomatic considerations may be, we are talking about heinous crimes committed under the auspices of President Bashir.
Given our own history and our own constitutional premise, to argue for immunity for those kinds of crimes is
unthinkable”.50
IX. SOUTH AFRICA AND THE ANTICIPATED PRESENCE PROVISION
SALC, the human rights group that had petitioned the court to order al – Bashir‟s arrest, reported in a statement that it was
disappointed that the government allowed the Sudanese President to leave before the ruling. Judge Fabricious reiterated
that he wanted to determine whether it was legally acceptable for the government of South Africa to allow al-Bashir to
visit South Africa without arresting him – and key in that decision would be determining if the South African cabinet‟s
decision not to comply with the ICC demand could trump an international treaty. In order to avoid all this legal and
judicial bureaucracy and red tape that led to the escape of al-Bashir before the court ruling, the South African government
could have adopted the anticipated presence provision if it ever wanted to arrest and indict President Bashir. This
involves conducting an investigation, issuing an indictment or requesting extradition when the accused is not present.
This is because international law does not require states to ensure that the accused is present in order to institute universal
jurisdiction proceedings.
In this regard, South Africa could have therefore initiated judicial proceedings even before Bashir had arrived for the
summit. This position was asserted by Judges Higgins, Kooijmans and Buergenthal in their joint supreme opinion in the
International Court of Justice decision in Democratic Republic of Congo v Belgium (2002) when they stated that, :[I]f the
45
Ibid, 43
46
Ibid, 43
47
Cited in Ibid, 43
48
Cited in Melvin, D., and McLaughlin, E.C. 2015. “Sudan‟s Leader Leaves South Africa before court orders arrest”. Cable News
Network, June 15.
49
Cited in Onishi, N. 2015. “Omar al-Bashir, Leaving South Africa, Eludes Arrest Again”. Reuters, 15 June.
50
Ibid, 49
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underlying purpose of designating certain acts as international crimes is to authorise a wide jurisdiction to be asserted
over persons committing them, there is no rule of international law ... which makes illegal cooperative overt acts
designated to secure their presence within a state wishing to exercise jurisdiction”.51
In the anticipated presence provision, the due process right to be present during trial is distinct from the law defining the
legitimate exercise of jurisdiction, which does not require presence when proceedings first commence. In this regard the
Princeton Principles of Universal Jurisdiction state that a judicial body may try accused persons on the basis of universal
jurisdiction, „provided the person is present before such judicial body‟ (Program in Law and Public Affairs, Princeton
University, 2001:32). That language „does not prevent a state from initiating the criminal process, conducting an
investigation, issuing an indictment or requesting extradition, when the accused is not present‟ (Program in Law and
Public Affairs, Princeton University, 2001”32).52
There are two fundamental reasons of logic and practice which support and validate that a perpetrator does not have to be
physically present in the forum deprehensionis for an investigation to be instituted and for an arrest warrant to be issued in
anticipation of a perpetrator‟s physical arrival. First, if the entire investigation is subject to having established the
presence of the accused, then logically there is great risk that no prosecution would ever be undertaken.53
One
commentator noted that, “whether or not expressed, the condition of presence must be presumed for the purpose of the
„search‟, during the course of which it will be verified. Otherwise it is a vicious circle: in order to know whether X is in
hiding on our territory, it is necessary to search for him, but in order to search for him, it is necessary to have already
discovered (by enlightenment or intuition) that he is present (Lambois, 1995 cited in FIDH, 2006: 8).54
Second, because it
is based on the location of the suspect and not on other circumstances of the case, a strict presence requirement is a „blunt
instrument‟, imposing an imperfect limit on the exercise of universal jurisdiction and creating practical disadvantages by
restricting the power to open an investigation to the point at which it can be proven that a suspect is within the territory of
the state exercising universal jurisdiction.55
Human rights Watch gives an illustrative example of the disadvantageous effect of a strict presence requirement as a pre-
requisite to investigation, which may allow a suspected perpetrator to escape justice: “... in October 2005, Danish
authorities received a complaint concerning a Chinese official who was scheduled to attend a conference in Copenhagen.
The complaint was received in advance of the suspect‟s entry into Denmark, but a strict presence requirement in Danish
legislation meant that Danish authorities could not legally open an investigation into the complaint before the suspect
arrived. In effect, Danish investigators had only five days – the duration of the conference – to investigate the complaint
and apply for an arrest warrant. When the Chinese official left Denmark after five days, the investigation had to be
discontinued”. (Human rights Watch, 2006: 28).56
In similar circumstances Omar al basher left South Africa whole legal
proceedings were still underway. The SALC was still investigating whether Bashir‟s arrest warrant can be fully tested in
a court of law. SALC later got approval that the warrant of arrest can be tested in South African court of law, but
unfortunately Bashir had already left. For these reasons, it is open to and preferable for the NPA, under the ICC Act, to
commence proceedings and issue warrants of arrest prior to the presence of the accused in South African territory.57
The United Kingdom adopted the „anticipated presence‟ provision as a pre-requisite to instituting an investigation against
suspected perpetrators of international crimes. In a pulsating famous United Kingdom case, Retired Major General Doron
Almog declined to disembark from his flight at London‟s Heathrow airport after he learnt that he may face arrest and
incarceration by the British Metro Police after a decision on September 10, 2005 by Timothy Workman, a Chief London
Magistrate, on allegations of committing a grievous breach of the Fourth Geneva Convention (1949) which is a criminal
offence in the UK under the Geneva Convention Act of 1957. The alleged offence was committed as part of Israel‟s
occupation of the occupied Palestinian territory. This unprecedented arrest warrant against a senior Israeli soldier was
issued after years of failed efforts to obtain justice through the Israeli judicial system. Because of the failure of the Israeli
judicial to combat impunity, a non-governmental organisation acting for victims in Gaza, built a file of evidence with the
51
Cited in ibid, 1
52
Cited in ibid, 1
53
Ibid, 1
54
Cited in ibid, 1
55
Ibid, 1
56
Cited in ibid, 1
57
Ibid, 1
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help of Hickman and rose solicitors to pursue a case against him (and others) in the UK in accordance with the legal
principle of universal jurisdiction over war crimes.58
In this case the UK Metro police was unsuccessful. Retired Major
General Doron Almog caught his next flight back to Israel and escaped arrest and incarceration.
Other states such as Germany have also incorporated the anticipated presence provision into their new provision of the
German code of Criminal procedure, paragraph 153f (cited in Werle, 2005) which makes it mandatory an investigation of
a suspected international perpetrator of egregious crimes where the suspect is present in Germany or the suspect‟s
presence in anticipated. The UK police may therefore open an investigation regardless of the whereabouts of the accused.
However, for an arrest warrant to be issued and for a suspect to be charged, the accused must either be present or his or
her presence anticipated. (Human Rights Watch, 2006).59
Do African States Really Adore Impunity?
The current legal gymnastics and polarization between the African Union and the ICC is not really about AU member
states adoring impunity, genocide, war crimes, crimes against humanity, crimes of aggression and crimes against the
administration of justice, but it is about demonstrating the African Union‟s present negative stance towards the ICC by
ignoring what the AU member states are obliged to do, that is to arrest and indict al-Bashir. Al-Bashir is only acting as a
demonstration or sign of Africa‟s seething spirit towards the ICC. Ignoring the arrest of Omar al-Bashir acts as a sign not
of condoning impunity, but to show how the AU abhors the ICC. It is thus not about the arrest of Bashir, but about the
AU‟s demonstration and a sign of its abhorrence towards the ICC. If there were no allegations of ICC selective justice by
the AU member states, the AU was not going to stage a demonstration of showing its aversion stance towards the ICC as
it is currently doing. Bashir is thus being used as a legal exhibit to show the degree of distastefulness and dissatisfaction
AU member states have on the ICC. The AU would rather prefer there is no ICC at all than having one that they abhor.
Ignoring the arrest of Omar al-Bashir shows the gravity and severity of Africa‟s dissatisfaction towards the ICC, rather
than the continent‟s unwillingness or inability to bring perpetrators of egregious crimes to book. The AU member states
would rather prefer to ignore the arrest and indictment of perpetrators of heinous crimes as a means of showing the ICC
how they now Abhor the court and not because they necessarily tolerate or adore impunity as well as such perpetrators of
awful crimes. Thus AU member states unite if they have a common enemy and not a common perpetrator.
X. SOME JUSTIFICATION FOR SOUTH AFRICAN ACTION
a) Political problems where neither side is wholly guilty or innocent are not suitable to solve through the courts. The AU
can thus negotiate, conciliate, mediate or arbitrate in the Darfur crisis politically and not legally through the ICC.
b) South Africa has to promote Pan Africanism and African solidarity. South Africa is in Africa and not in Europe, and
therefore pays allegiance to Africa more than what it does to Europe.
c) Allegations of selective justice which seem to target Africans seem to be true. This is because since its establishment
in 2002, the ICC has had 22 cases and indicted 32 individuals. All of them are Africans.
d) All African states do not possess any protection, privilege or shielding mechanism as the veto of prosecution. For
Africa therefore, shielding their fellow presidents and comrades in arms from the ICC acts as a „form of veto‟ to shield
them from indictment.
e) African problems require African solutions because these problems are complicated, inherited from colonialism,
slavery and imperialism as well as trans-generational. They therefore need home-grown solutions and not imported
justice.
f) The UNSC referrals to the ICC are also selective. The UNSC referred situations in Darfur and Libya, leaving other
areas where egregious crimes were being perpetrated, for example, in Myanmar, Iraq, and Afghanistan.
g) The ICC Chief Prosecutor only used his powers „proprio motu‟ in Kenya, which is an African state. This made
Africans to believe that Africa is serving as a legal punch bag for the ICC.
h) ICC regional bias seems to be true. All the cases that the ICC is handling are all in Africa.
i) ICC indictments and UNSC referrals are only a manifestation of great power politics and national interests.
58
Ibid, 1
59
Cited in ibid, 1
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What the ICC can do in order to resuscitate and restore legitimacy in Africa:
a) The Rome Treaty should be revisited and some provisions amended, for example, the veto of prosecution of the
Permanent Five Members of the UNSC which makes them immune from prosecution.
b) The ICC should cast its legal net wide to all corners of the globe. Currently, the court seems too vindictive and
malicious to Africa.
c) No leaders, former leaders or officials should be regarded as „untouchables‟ as can be seen in statesmen such as
George Bush and Tony Blair, whose careers were obviously tainted with illegality of war crimes and crimes against
humanity in Iraq and Afghanistan.
d) The ICC Chief Prosecutor‟s „proprio motu‟ power should spread rather than be regional specific (Africa). The
Prosecutor only used such powers in Kenya (Africa) and ignored all other areas that such powers could be used.
e) The ICC should be able to dichotomise between legal and political problems and be able to select which problems to
render unjusticeable.
f) The Darfur referral should be reconsidered by the UNSC and the ICC in the sense of African requests, that is, deferral.
The Darfur issue is a political issue just like the Palestinian – Israeli issue.
XI. LEGAL IMPLICATIONS
a) South Africa in particular and Africa in general can no longer be trusted in future to prosecute any international crimes
or indict perpetrators.
b) The complementarity principle of the Rome Statute in Africa is virtually defunct. This is because the ICC has lost its
legal mojo and legitimacy in Africa. The ICC has neither a police force nor a standing army to enforce its rulings or
arrest perpetrators, but relies on member states (complementarity) that hand over perpetrators to it. It also relies on
diplomatic pressure to ensure that its rulings and indictments are enforced.
c) Absence of Africa as well as the USA as part of the Court will reap sundry and unbearable legal consequences to the
ICC such that the court will be like a ladder without perches.
d) For South Africa in particular and Africa in general, signing international treaties and implementing them may be two
different things. For Africa, signing and ratifying statutes is one thing, and implementing is another. Reliance cannot
therefore be placed on African states that if they sign and ratify statutes, they will implement them.
e) The ICC Statute and Rome Treaty for Africa will remain nominal. They will only remain written commitments in
countries‟ constitutions and on paper but will never be implemented on the ground. They will thus be all petrol but no
machine.
f) South Africa, which is a leading state in Africa democratically, economically, politically and militarily, has legally
followed a bad precedent that was set by other African states parties to the Rome Statute such as Nigeria, Ethiopia,
Eritrea, Malawi, Chad, Kenya and Djibouti. Because president Bashir was not arrested in South Africa, it is likely that
he will never be arrested in any African state that he will visit in future.
g) By breaching its municipal and international law provisions, South Africa has also demonstrated to the world that
when it comes to national or regional interests, laws can be broken or put aside in order to safeguard national and
regional interests. For South Africa therefore, there are no permanent legal interests, but permanent regional interests.
In Africa therefore, nothing is cast in stone.
h) For South Africa in particular and Africa in general, solidarity is better than justice.
XII. CONCLUSION
The International Criminal court set a bad precedent in Africa in general and in South Africa in particular. The idea of a
court of last instance was a commendable one and one cannot throw away the baby with the dirty bathing water, but the
implementation (referrals and indictments) left a lot to be desired. The ICC could have resuscitated and maintain relations
with Africa, say after the Muammar Gaddafi and Laurent Gbagbo cases when talks of selective justice were starting to
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loom, but like a stubborn fly that is buried by the corpse, the court maintained its stiff-necked stance of an exclusive focus
on Africa as if Africa is the only Eldorado of egregious crimes of genocide, war crimes, crimes against humanity the
crimes of aggression and crimes against the administration of justice. For the ICC, it is thus not what it did but what it
failed to do (to cast its legal net wide) that led to its legal demise in Africa. Politically, South African action in ignoring
the arrest of President Bashir was very commendable in showing how Africa is seething and pissed by the ICC. However,
legally what the South African government did by this action was ultra-vires its constitutional provisions. Legally
therefore, to say the South African government defiant action in ignoring the arrest of President Bashir was unexpected
and unwarranted for would be an understatement. It was a maniacal abuse of the ethos of its municipal and international
law provisions and legal aberration of monumental proportions that must have sent waves of consternation to the legal
fraternity in the entire civilized world. Under these circumstances, it can be asserted that African commitment to statutes
should not be taken at face value, but should be treated with a pinch of salt. The South African case has taught the world
that states world over need to adopt a realist rather than an idealist perspective because national and regional interests cut
across every spectrum of society. This is consolidated by the former United States Secretary of State Dean Acheson who
recapitulates by noting that, “The future is unpredictable. Only one thing, the unexpected, can be reasonably anticipated.
The part of wisdom is to be prepared for what may happen, rather than to base out course upon faith in what should
happen”.60
REFERENCES
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M. 2008. “South Africa‟s International Criminal Court Act. Countering Genocide, War Crimes and Crimes against
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Crimes against Humanity”. Institute for Security Studies paper 172.
[3] Du Plessis, M. 2010. “International Criminal Courts, the International Criminal Court, and South Africa‟s
Implementation of the Rome Statute”, in Dugard, J. 2010. International Law: a South African Perspective. Cape
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60
The South African government adopted a realist perspective by implementing the „ought is‟ rather than the „ought to be‟.
Idealistically, Bashir was supposed to be arrested upon his arrival in South Africa by the Rome Statute‟s complementarity principle.
Realistically, South Africa back-staged and flinched because Pan Africanism, solidarity, national and regional interest are more
important than justice.
16. ISSN 2349-7831
International Journal of Recent Research in Social Sciences and Humanities (IJRRSSH)
Vol. 2, Issue 4, pp: (20-35), Month: October - December 2015, Available at: www.paperpublications.org
Page | 35
Paper Publications
Abbreviations:
ANC - African National Congress
AU - African Union
ICC - International Criminal Court
NDPP - National Director of Public Prosecutions
NGOs - Non-Governmental Organizations
NPA - National Prosecuting Authority
SALZ - South African Litigation Centre
UK - United Kingdom
UN - United Nations
UNSC - United Nations Security Council
USA - United States of America
US - United States
Author’s Profile:
Daglous Makumbe is a holder of a Master‟s Degree in International Relations at the University of Zimbabwe. He studied
for a Diploma in Education, Bachelor of Science Honours Degree in Political Science, Bachelor of Science Honours
Degree in Administration and a Master‟s Degree in International Relations at the same university. He is the author of the
book, “Complementarity, Jurisdiction and Admissibility on International Legal Justice: the International Criminal Court
and Kenya”, published by Lambert Academic Publishing, Deutschland (2015), and several articles on International Law
and International Relations. The author can be contacted at: deemakumbe@gmail.com