The Al-Bashir indictment and its implication on Ethiopia and other countries

By Kadiro A. Elemo

The issuance of an arrest warrant for the President of Sudan, Omar Hassan Al-Bashir, by the International Criminal Court (ICC) on charges of war crimes committed in the conflict trodden Darfur is the political fever of this week. Right after the declaration of Luis Moreno-Ocampo, the most senior ICC prosecutor, the intention of the ICC to indict the Sudanese President on the war crimes committed in Darfur, a lot has been undergoing behind the curtain to avert the issuance of the arrest warrant primarily because there was a trepidation that this will further deteriorate the fragile peace process in the Sudan and looms a humanitarian crisis or even ignite a new conflict in the war torn nation. Secondly, it is feared that Sudan might not corporate on the adjudication or extradition of those individuals involved in the commissions of war crimes or crimes against humanity. Thirdly, some dictators who realized their grip on power by perpetration and perpetuation of similar crimes on their people fear that indicting an incumbent head of the state will set a bad precedent in the international law. Fourthly, some also doubt that it might be used by colonialists and neo-colonialists to execute their hidden agenda. We also saw U.S. A. quagmire since U.S.A. want to use the court in this very case against Sudan but they want to remain immune to the jurisdiction of the Court as they are not party to the Court.

An Old Era in the International Law

According to the positivist understanding of international law, the dominant doctrine of the international law, since international law is established on the common consent of individual states, as opposed to the consent of individual human beings, states are the “subjects” of the international law and private individuals are simply the “objects” of the international law. The legal implication of this position is states are the only bearers of rights and duties and unlike in the municipal laws; individual human beings do not have rights and obligations under international law. In the municipal laws, individuals enjoy the civil capacity to sue and being sued; and in case of breach of criminal law, they are susceptible to prosecution. As per the dictum of the positivist’s doctrine of international law, suing and being sued under the international plane is the prerogative and responsibility of the states. Oppenheim, renowned authority in international law, explains this position as follows:

Since the law of nations is based on the consent of the individual states, and not of the individuals human beings, states solely and exclusively are the subjects of the international law. This means that the law of nations is for the individual conducts of the states, and not of their citizens …and individual human beings… is never directly a subject of international law.”

Individual Criminal Responsibility under Contemporary International Law

The emerging trends in the international law show that individual is responsible for his/her activities under international law for crimes such as crimes of genocide, crimes against humanity, and piracy that give universal jurisdiction to any state on the globe to prosecute the person whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of his/her nationality, country of residence, or any other relation with the prosecuting country. The above-enumerated crimes are considered as a crime against all, which any state is authorized to punish or extradite since perpetrator is considered as an implacable enemy of all humankind: hostes humani generis. The idea of universal jurisdiction emanates from the cardinal principle of international law, which makes certain norms in international law erga omnes (owed to the entire world community).

The precedents for prosecuting individuals those crimes were set in Nuremburg and Tokyo Tribunals. The UN has established ad hoc international tribunal to try the atrocities committed in the former Yugoslavia (International Criminal Tribunal for Yugoslavia) and Rwanda (International Criminal Tribunal for Rwanda). The UN has also established Hybrid Criminal Courts in different countries such as Afghanistan, Sierra Leone, Kosovo, and East Timor and rendered workable criminal justice system, as the trials were held in scene of the crime and in a fashion easy to obtain witness and evidences. However, the warrant issued for the Sudanese president, Oman Hassan Al Bashir, is the first of its kind issued for sitting head of state. Human Rights Watch says, “ICC issuance of an arrest warrant … signals that even those at the top may be held to account for mass murder, rape and torture.”

Double Standard: Who is next: Why Not Meles?

Various voices are accusing ICC for double standard. Jean Ping, the AU’s Commission chairman, said, “What we see is that international justice seems to be applying its fight against impunity only to Africa as if nothing were happening elsewhere, [such as] in Iraq, Gaza, Colombia or in the Caucasus.” This is a good start; however, ICC needs to be fair and give attention for crimes against humanity committed in different parties of the world. For instance, ICC needs to focus on Ethiopia where Ethiopian Prime Minister, Meles Zenawi, created “a mini-Darfur “situation. An excerpt from my previous article:

The only difference between the Ethiopian Darfur and Sudanese Darfur is the fact that while Sudan is abhorred by the Western countries for its atrocious actions, Ethiopia is the key ally in security issues with the Western countries that offered human rights a sacrificial lamb. Besides this, Ethiopia receives substantial military and economic aids from Westerns that indirectly finance its egregious activities; and this not only reflects the recklessness of Westerns towards the atrocities but also shows their complicity otherwise they would have altered the political landscape and human rights situations in Ethiopia because of the tremendous leverages they have over considerably foreign aids dependent Ethiopia.”

Ethiopia is the second country after Sudan to reject the arrest warrant because they knew that Meles is on the same boat with Bashir on unleashing the same horrendous crimes on his peoples. If there is objectivity and fairness in ICC, Meles would be the next target. At any rate, attention for the war crimes committed on the voiceless peoples exonerates ICC from criticisms and increases its credibility.

What is the Significance of the Warrant?

Time will give answer to the question, “Will ICC succeed in getting Al Bashir”. However, the issuance of arrest warrant for him serves as a siren call for the sitting heads of states who commit those heinous crimes on their peoples since even there is “No Free Pass” for Presidents. Whether it is committed by Bashir or Bush, no crime goes unpunished. This is a lesson for Meles Zenawi.

(Kadiro Elemo is a human rights activist who uses his pen and tongue to fight against tyranny. He is a host and a producer of Voice of Oromia (www.voiceoforomia.com) that serves the voiceless, defends the dignity and fights for justice. He can be reached for comment, suggestion, or criticism at [email protected].)