The Arrest and Trial of Ahmed Haroun and Ali Mohammad Ali by the ICC

Introduction
The international Criminal Court (ICC) in May 2007, issued arrest warrants against a Sudanese minister and a militia minister suspected of war crimes and crimes against humanity in the Darfur region.

The charge against the Sudanese minister
According to the ICC, Ahmed Haroun, a formal deputy interior minister in charge of Darfur in 2003 and 2004, was responsible for recruiting, funding and arming Janjaweed militia. Ahmed Haroun was made the humanitarian affairs minister who over sees Darfur’s two million refugees. He is accused by aid agencies of hindering their efforts to access the displaced.

The charge against the Janjaweed militia leader
According to the ICC, Ali Mohammad Ali (also called Ali Kosheid) was the leader in 2003, who allegedly promoted and witness rape and torture as part of the war strategy.

Evidence
According to a 58 page Court decision, there were reasonable grounds to believe that Haroun and Kosheib were responsible for persecuting, raping, attacking and killing civilians from villages in Darfur. ICC prosecutor Luis Moreho-Ocampo claims “we completed an investigation under very difficult circumstances, from outside Darfur, and without exposing any of our witnesses. We transformed their stories into evidence, and now the judges have confirmed the strength of that evidence,” (source: AFP news agency reports).

Legal basis of the arrest warrants
The ICC’s decision to issue arrest warrants for the arrest and trial of Ahmed Haroun and Ali Kosheib is based on the Rome statute of the International Criminal Court. The ICC has jurisdiction under Article 5 of the Statute, with respect to (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression. The two men were both charged with war crimes and crimes against humanity under Article 7 of the Statute. ‘Crimes against humanity’ means any act when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. Crime that falls under Article 7 includes, murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, or other severe deprivation of physical liability in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, etc.
According to Article 8 of the Statute, the ICC shall also have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or a part of a large-scale commission of such crimes. War crimes under this Article mean grave breaches of the Geneva Convention of 12 August 1949. These include wilful killing; torture or inhumane treatment; wilfully causing great suffering, or serious injuries to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; unlawful deportation or transfer or unlawful confinement and taking of hostages.
Legal issues to be determined
The legal issues to be determined by the Court, therefore, is whether the two suspects alleged conducts constituted ‘war crimes and crimes against humanity’ within the meaning of Article 7 and 8 of the Rome Statute.

As mentioned above, Ahmed Haroun was allegedly responsible for organising and funding the militia, known as the Janjaweed. He is also alleged to have hindered aid agencies efforts to reach the displaced innocent people.
On his part, Ali Kosheib Ali, is also alleged to have promoted and witnessed rape and torture as part of the war strategy. Clearly, these crimes constitute “war crimes” and “crimes against humanity” defined under Articles 7 and 8 respectively. However, the onus is on the ICC prosecutor to prove with the evidence available to him that the two suspects, Ahmed Haroun and Ali Kosheib Ali, actually committed the alleged crimes.
It must be noted that under Article 7 of the Rome statute, the suspect must have knowledge of the attack. It appears that this may not be difficult to prove, given the manner in which the Sudanese government have conducted themselves so far.

The Jurisdiction of the Court
The jurisdiction of the Court is a serious question, thus, in the instance, is whether the ICC has the power to trial the two suspects. There are preconditions to the exercise of the Court’s jurisdiction. Article 12 of the Statute stipulates that a state which becomes a party to this Statute, hereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5.

Sudan is not a state party to the Statute, nor has Sudan accepted the Jurisdiction of the Court. Obviously, the ICC relies on Article 13 of the Statute with regards to the arrest and trial of the two suspects. Article 13 provides that the Court may exercise its jurisdiction with respect to a crime referred to in Article 5, in accordance with the provision of the statute, if;
A situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by a State party in accordance with Article 14;
A situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by the Security Council acting under chapter V11 of the chapter of the United Nations; or
The prosecutor has initiated an investigation in respect of such a crime in accordance with Article 15.

Thus, with regards to the arrest and trial of the two suspects, the ICC will exercise its jurisdiction in accordance with Article 13B. In March 2005, the UN Security Council referred the situation in Darfur to the ICC’s prosecutor. The Security Council resolution 1593 requires Sudan to cooperate fully with ICC investigations.

The direction of the international Justice program at Human Right Watch, Richard Dicker, “the Council needs to monitor Sudan’s conduct and insist that it hands over the suspects as required.” Thus, the Sudanese authorities are required not only to execute arrest warrants, but also to respond positively to request from the ICC prosecutor.

Sudanese authorities response
Apparently relying on the fact that Sudan is not a party state to the ICC statute, the Sudanese authorities have failed to cooperate with the ICC. Whereas, the ICC believes it has jurisdiction to try the suspects. The Sudanese authorities contend that the ICC has no jurisdiction to try Sudanese, furthermore, that its own Courts are adequately capable of prosecuting suspects. Sudan, therefore, is saying that it will not allow anybody, including rebels, to be tried outside of Sudan.

According to Article 17 of the Rome Statute, the ICC shall determine that a case is inadmissible where;
The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution. Article 20(3) of the Statute also provides that, “no person who has been tried by another Court for conduct also proscribed under Article 6, 7 or 8 shall be tried by the ICC with respect to the same conduct unless the proceedings in the Court;
Were for the purpose of shielding the person concern for criminal responsibility for crimes within the jurisdiction of the Court; or
Otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

The ICC has determined that the cases against the two suspects are admissible and the decision is clearly based on the obvious fact that Sudan is uncooperative and unwilling to genuinely carry out the investigation or prosecution of the two men. One of the two Suspects, Ali Kosheib, is said to already be in the custody of the Sudanese government for attacks committed in Darfur. He is said to have been in detention since November 2006, but it is believed that he has in fact been travelling Darfur under police protection (source: Association Press news report).

The two suspects have not been tried by any other Court for the crimes proscribed under Article 6, 7, or 8 and there is no indication that any other Court is prepared to do so. Under Article 19 of the Statute, a state which has jurisdiction over a case, on the grounds that it is investigating or prosecuting the case or has investigated or prosecuted may make challenges to the admissibility of a case. An accused or a person for whom a warrant of arrest or a summon(s) to appear has been issued may also make such challenges. On the basis of this, it could be argued, or concluded that the ICC should leave the case for Sudan to investigate or prosecute since Sudan has insisted that it is capable of trying alleged war criminals without any help from ICC. However, considering the evidence on the ground and the ongoing phenomenon in Darfur, one finds it extremely difficult to believe that, Sudan will indeed rain-in on the alleged war criminals and thus, properly investigate and prosecute. Humanitarian agencies have severally complained that they suffer frequent harassment from the Sudanese authorities (source: BBC news report).

It is important to mention that the ICC shall not rely on the Rome Statute only in other to try war crime suspects. According to Article 21 of the Statute, apart from the Statute, the ICC shall apply elements of crimes and its Rules of Procedure and Evidence; and where appropriate, applicable treaties and the principles of the international law, including the established principles of the international law of armed conflict. Article 21 further provides that the ICC shall apply general principles of law derived by the ICC from national laws general systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with the Rome statute and with international law and internationally recognised norms and standards. In addition, the ICC may apply principles and rules of law as interpreted in its previous decisions.

In conclusion, there is no question that the crimes allegedly committed by Ahmed Haroun and Ali Kosheib constitute war crimes and crimes against humanity. Once the prosecutor establishes strong evidence to support the charges brought against the two suspects, it will be difficult for the suspects to escape conviction for the crimes in question. It must be pointed out, however, that getting the suspects arrested and bringing them before a Court of law to stand trial is another matter.
Since the case was referred to the ICC prosecutor by the UN Security Council, the ICC has acquires jurisdiction over the case. Sudanese Courts also have jurisdiction over the case but the manner in which the Sudanese authorities have conducted themselves so far, leads to the conclusion that they are unwilling to genuinely investigate or prosecute the case. Thus, the ICC is the appropriate Court to try the suspects. However, like national criminal Courts, trial by the ICC is likely to be characterised by delay.

EVALUATION OF WAR ON TERROR: INTERNATIONAL LAW PERSPECTIVE

Introduction
It is no exaggeration to say that the people behind the so called ‘war on terror’ are relentless in their effort just as those who engage in terrorist activities are unrepentant. Apparently, this forms the basis of the general view that the conflict between the two sides will never come to an end. There is no gainsaying that this global issue has reached such a height it cannot be treated with indifference. In other words, the issue has succeeded in attracting consuming concerns across the length and breadth of the contemporary world. There is hardly anyone who would dispute the fact that terrorism serves as an obstacles to global peace. On the face of it, there is therefore nothing wrong in adopting measures to combat terrorism. However, where those who assume the responsibility to fight against terrorism fail to come with ‘clean hands’ or embark upon the fight in a manner that is worthy of condemnation, there is the likelihood that their effort will yield no fruit as their conduct might cause more extremists to resort to terrorism. This paper focuses on how those who purport to pursue justice have become the major violator of international criminal and human rights laws.

The Cause of the War on Terror
Experience has taught us that the best way to quell a problem is to trace the root of the problem. This means we should try to find out not only why people engage in suicide bombing or terrorist activities but also what people have done or continue to do which has caused them to be the punished through suicide bombing. The term ‘terrorism’ itself is controversial and subjective, and thus has multiple definitions. For the purpose of this paper, terrorism refers to ‘the use or threatened use of violence for the purpose of creating fear in order to achieve a political, economic, religious or ideological goal’.[1] There are a number of terrorist groups in the world but since the September 11 attacks on the United States, the so-called ‘war on terror’ has had the group called ‘Al Qaeda’ as its main target. It is therefore necessary to take a look at how the group operates.

Al-Qaeda is a group of Muslim fundamentalists, or what the Western world commonly referred to as ‘Islamic extremists’. It was founded by Osama bin Laden, a former Saudi Arabian citizen who inherited a vast fortune from his father. [2] The group is comprised of 3000 – 5000 Wahhabi Muslims.[3] Al-Qaeda, (an Arabic word which means the base) has Osama Bin Laden as its leader (the Emir-General) and it is integrated with 24 constituent groups. It is generally believed that the group owes its extensive support and operational infrastructure to its broad ideological disposition, and that Bin Laden’s ideology appeals to both Middle Eastern and non-Middle Eastern groups that are Islamic in character.
Al-Qaeda was established to support these types of groups. First, it was established to support groups fighting regimes led by Muslim rulers, which they believed, are compromising Islamic ideals and interests as in Egypt, Algeria and Saudi Arabia. Second, it was set up to support groups that are fighting regimes perceived as oppressing and repressing their Muslim populace as in Kosovo, India and Indonesia. Third, it was intended to support groups fighting regimes to establish their own Islamic state as in Palestine and Chechnya. Seeing the US as a threat to Islam, Al-Qaeda directed its efforts and resources to fight the US. The group sees US as a threat to Islam firstly because of US military presence in Saudi Arabia. The second threat, from Al-Qaeda’s point of view, is the ‘hypocritical’ US foreign policy that has attempted to colonise the Middle East to protect oil interest. The third reason is the US political, economic and military support for Israeli attacks on innocent Muslims in Palestine, as well as US-led sanctions against Iraqi civilians after the Gulf War. In fact, this is an issue which continues to create anger not only in members of Al-Qaeda but also in many Muslims all over the world.

As far as Al-Qaeda is concerned, the conflict between them and US began in 1989, when the Saudi government granted US military permission to construct bases from which to attack Iraq. The decision was denounced by Bin Laden and all Wahhabi clerics. They saw the Western military forces as infidels on holy land.[4] A letter was therefore written by bin Laden in 1996 in which he declared War against US for occupying the land of two holy places”. In 1998, bin Laden wrote another letter in which he called for ‘Jihad’ against Jews and ‘Crusaders’. He stated that “for seven years the United States has been occupying the land of Islam in the holiest of places, the Arabian Peninsula.”[5] Bin Laden and his Al-Qaeda members found it unacceptable to allow US to occupy any part of Saudi Arabia let alone use that position to attack another Muslim country. The leader voiced his anger at US foreign policy in the following words:
“The American imposes himself on everyone … By testimony of relief workers in Iraq, the American-led sanctions resulted in the death of more that one million Iraqi children. All of this is done in the name of American interest … We believe that the biggest thieves in the world and the terrorists are the American.”[6]

Al Qaeda’s anger at US culminated in the attack on US on September 11, 2001. The purpose of this paper is not to determine whether such an attack was justified. All over the world, the attack was condemned in no uncertain terms by peace-loving and right-thinking people. As stated above, this paper is primarily concerned about the use of religion to justify the attack. Al Qaeda regards their terrorist activities as ‘jihad’. Jihad is an Arabic term which means to strive hard, or to fight to defend one’s life, property, freedom and religion. It also refers to an attempt to free people from oppression and tyranny. It is a doctrine contained in the Qur’an, the Muslim holy book. Legitimacy of jihad in the meaning of ‘fighting’ appears in the context of defending the community and bringing the breakdown of the public order to a halt so that “there is no persecution and religion is only for God.”[7] The question then arises as to whether Al-Qaeda, by their activities, is giving the correct interpretation to the doctrine of jihad or is simply abusing it. An answer to this question is important, given the consequences of terrorist activities.
It is clear from the interpretation of jihad, as given above, that jihad is essentially for self defence. Sachedina asserts:
“This was a prescriptive measure to arrest the harm caused to people at large and to redress the wrongs suffered by the weak at the hands of those who perpetrate immoralities in order to defeat the divine purposes on earth. The use of force, as far as the Qur’an is concerned, is defensive and limited to the violation of interpersonal human conduct.”[8]

If jihad is limited to violation of interpersonal conduct, then how can Al-Qaeda rely on jihad to fight external aggression or domination? Also, if jihad is essentially for self defence, then why should it be used to attack? That the issue is a complex one cannot be disputed, and the Al-Qaeda might also argue that their activities are in response to US behaviour which the group perceive to be offensive. Besides, jihad can be interpreted to provide justification for offensive attack. The Qur’an leaves the possibility of offensive jihad when it requires the Prophet of Islam to strive to create an ideal public order.[9] Thus, the problem lies in the interpretation of the passages of the Qur’an that speaks about jihad. Given the fact that terrorist activities, such as suicide bombing, take away the lives of innocent people, one may conclude that Al-Qaeda is abusing the doctrine of jihad. Another strong argument that can be raised against Al-Qaeda is that the doctrine of jihad permits defensive war against those who attack, but terrorist activities hardly affect the personal lives of people in power who are perceived to be the attackers. For example, the September 11 attack on America could not cost the live of any of the people in power; those who lost their lives were mostly civilians.

Apart from the fact that terrorism brings about the death of innocent people, it can create a bad image about the religion of the terrorists. Many are those who see Islam as a violent religion and this has largely been caused by the conduct of Islamic fundamentalists. This sufficiently explains why politicisation of religion to justify war is appalling. Sachedina argues:

“The term jihad with its long and complex history in Islam as it interacted with political power, has been used and abused to justify endless violence that has plagued many of these countries in the Middle East. The frequent abuse of the term by religious leaders led many Western observers to treat jihad essentially in the meaning of ‘holy war’ with an implication that Muslims international relations will continue to conflict-ridden because, as a religious obligation to fight dark forces of disbelief and arrogance, jihad will continue to determine Muslim relations with the non-Muslim world.”[10]
On a number of occasions, Islamic fundamentalists have argued that fighting is obligatory for Muslims, even when the unbelievers had not begun the hostilities. Their argument is based particularly on a Qur’anic verse, which is dubbed as “the sword verse”. The verse declares war on unbelievers in the following words:
“Slay them wherever you find them, and take them, and confine them and lie wait for them at every place of ambush.”[11]

Al-Qaeda’s reliance on this passage cannot be over emphasised. For bin Laden, jihad is an individual duty, which must be performed by all male, able-bodied Muslims, and not simply a collective one, which, if performed by sufficient number, relieves others from performing it. In his view, terrorism is a legitimate and morally demanded duty so long as anti-Muslim forces are carrying arms in Muslim lands, especially Muslim holy places. It is fair to call on bin Laden and his Al-Qaeda to consider whether they are not merely abusing the teachings of the religion they claim to love so much.

Apparently disturbed by the bad image being created about Islam by Islamic fundamentalists, Saudi Arabia’s highest religious authority has urged Muslims to shun extremism and avoid engaging in unjustified jihad. According to the Authority, “one of the fallouts from extremism in understanding Islam is that some people call for jihad for the sake of God without justification.”[12] The Authority added that “acts of sabotage, such as bombings, murder and destruction of property are serious criminal acts and an aggression against innocent people which warrant severe and deterrent punishment.”

Shortly after the September 11 attacks, it became clear that Osama bin Laden was hiding in Afghanistan. Despite incessant requests by the United States, the then Afghan’s ruling Taliban refused to hand bin Laden to the Americans. The justification of the resulting attack on the Taliban by the United States therefore lies in the fact the United States was entitled to defend itself.[13] The self defence response by the United States could be justified under Article 52, in that any attack the attack of September 11, though carried out by non-state actors but it was on such a grave ‘scale and have such effect that it would amount to an armed attack had it been carried out by the regular armed forces of a state.’[14] That position is illustrated in the case of Nicaragua, the court said that self-defence could include responses to the ‘sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed forces against another State of such gravity as to amount to (inter alia ) an actual armed attack conducted by regular armed forces, or its substantial involvement therein’. If a terrorist attack touches the required scale of gravity, it can amount to an ‘armed attack’.[15]
However, another argument would be that this does not lead to the conclusion that they were entitled to attack indiscriminately or disproportionately or embark on the use of force unilaterally against the territorial integrity of another nation without a UN mandate[16] (obtain without bulling). The pursuit of these indiscriminate uses of force is what John Strawson argued ‘destroys the notions of universal freedom and common humanity.’[17] Nonetheless, the United States feel completely justified; that international law and opinion was in her favour in her decision to invade Afghanistan, respective of Article 2.4 more so, the United Nations Security Council Resolutions in the aftermath of September 11 ‘the inherent right of individual and collective self defence’[18] supported that action.

Blaming Religion for Terrorism
It is not normal for people to blame a religion whenever extremists rely on religious teachings to justify terrorist activities. One cannot deny that on many occasions some Muslims are found involved in terrorist activities either on behalf of a group or on behalf of a country with a predominately Muslim population. As one writer put it:
‘It is not easy to close one’s eyes to various brands of terrorism which unfortunately flourish all over the world; in fact, it is impossible for an observer not to be aware of the persecution, bloodshed and murder, often in the name of some purported ideal or noble cause. Terrorism is a global problem and needs to be studied in its larger perspective. Unless we understand the forces behind the violence, we shall not be able to understand why some Muslim groups and states are turning to terrorism to achieve certain objectives’[19].

We are constantly inundated with talks of militancy and the use of force it is imperative that carefully analysed these information before we can understand the importance of these bizarre phenomenon. The narrow, non-tolerant attitude is certainly becoming more popular with the Muslim ‘clergy’ in almost all Muslim countries. The responsibility for this mainly lies on the shoulders of Saudi Arabia, which is attempting to capture the imagination of the whole Muslim world and seems resolved to spread its political influence under a religious guise. As it enjoys the unique advantage of being the custodian of the two holiest cities in Islam, Mecca and Medina, it is certainly in a position to exploit this situation to its best advantage.

The Muslim ‘clergy’ talk loudly about holy wars and the utter destruction of non-Islamic forces. What they actually mean by no Islamic forces is not Christian, Jewish, Buddhist, or atheist forces. According to their view, all Muslim sects other than their own are either no Muslim in their character or hold to doctrines that render them liable to earn the wrath of Allah and His true servants. The real enemies of Islam, as they discern them, are not non-Muslims but some sects of Islam within the world of Islam. The awakening militant tendencies are much more directed by Muslims of one sect against Muslims of another sect than against non-Muslims. This is why so much stress is laid by them on capital Punishment for Apostasy. That is their weapon against Muslims who differ on some doctrinal issues from the majority sect of a country. These sects are, in fact, dealt the death blow in two steps—first, their doctrines are declared to be non-Islamic, which earns them the title of apostates; and second, the doctrine of death being the penalty for apostasy, they are considered liable to be executed.

A neutral observer will agree that this growing militant tendency is creating disorder among the Muslims themselves and that it is responsible for generating extreme hatred in the hearts of adherents of one sect against the adherents of another.

As far as the non-Muslim powers are concerned, they can feel completely safe and should rest assured that there is no danger whatsoever to them from the so-called militant tendencies of the Muslim world. To demonstrate this, one has only to consider the relationship of Saudi Arabia with the West, particularly the USA. It is inconceivable that Saudi Arabia or countries under her influence could even dream of raising the sword against the USA or her allies. The Saudi regime is 100 per cent dependent for survival on the USA. Almost the entire wealth of the ruling family is deposited with American and Western banks. On top of this, the dependence upon the West for internal and external security is so obvious that it need not be dwelt upon here. These two factors alone guarantee that neither Saudi Arabia nor any Muslim country under her influence can ever pose a threat to the non-Muslim West. Moreover, the very fact that none of the Muslim states is today self-reliant in its production of war materials, and has to depend either upon the West or East for all of its defensive or offensive requirements, provides more than enough of a guarantee for the safe and peaceful conduct of their relations with no Muslim powers. The same principle is applicable to countries like Libya and Syria, which enjoy more cordial relationships with Eastern powers than with Western ones.

No one who has even a remote understanding of modem warfare can imagine a real threat from so-called ‘Islamic’ militancy. Of course, there is danger in these growing tendencies and one is bound to be perturbed by them. The danger from ‘Islamic’ militancy is a threat to the world of Islam itself; it is an inward-looking threat which is destroying the peace of Muslims everywhere. All the intolerance, narrow-mindedness and bigotry which we observe in the Muslim world today are playing havoc with the peace of the Muslim world.

There are, of course, regions of restlessness in the Muslim world where groups, organizations, and sometimes even governments, seem to be committed to acts of terrorism, violence and sabotage. In a majority of cases, those concerned happen to be Muslim by faith, but there are exceptions. Amongst Palestinians, for instance, there are many who have pledged themselves to terrorism against Israel, but happen to be Christian by faith. For convenience or through lack of knowledge they are all dubbed by the Western media as Islamic terrorists. In Lebanon, there have been Muslim terrorists and Christian terrorists, and also Israeli agents and soldiers involved at one time or another in terrorist activities which appals human sensitivities. But you will not hear of Jewish or Christian terrorism in relation to what is happening in Lebanon. All acts of violence are put together and wrapped up in the package of ‘Islamic terrorism’.
As far as Salman Rushdie is concerned, no sane person with any real knowledge of the Holy Quran can agree with Imam Khomeini that his death sentence is based on any Islamic injunction. There is no such punishment for blasphemy in the Holy Quran or in the Traditions of the Holy Prophet of Islam. Blasphemy against God is mentioned in the Holy Quran in the following words: ‘And abuse not those whom they call upon besides Allah, lest they, out of spite abuse Allah in their ignorance.’[20] No authorisation has been granted to any man to inflict any punishment for blasphemy against God. Blasphemy was committed by Jews against Mary; the mother of Jesus Christ.as It has been mentioned in the Holy Quran, where it says: ‘And for their disbelief and for their uttering against Mary a grievous calumny.’[21]

Disproportional Response to Terrorism
It belief that pre-emptive strike will make the Western World more secure is all but a fallacy. It is clear from strikes on Libya, Iraqi, Somalia, and Afghanistan that deterrence only served as an offspring of suicide bombers due to disproportionate response. Western policy on terrorism is to capture and incapacitate every terrorist cell. The question to ponder; how do you eradicate elements that breeds globally? Those who are aggrieved with policies they considered as oppressive, domineering – that is to say ‘imposing your way of life on us’ sets out to retaliate ‘eye for an eye’ by not only indoctrinating the youths but even the yet unborn. We are constantly reminded of that fact in the conflict between Israel and Palestine. These are determined Western enemies, set in their ideological ways – to destroy and murder, and are prepared to sacrifice their life for the beliefs they hold dear, respective of whether it made sense or not.
America and in particular, has vigorously embarked on pre-emptive strike as a cornerstone for self defence thus placing her citizens more in harms way, erodes on civil liberties, degrade international laws under the guise of national security. Hence, some commentators have come to see her devotion to the rule of law as a problem rather than a solution.[22] It is argued that, the kind of justice delivered by the American legal system, at its best, is not the answer. Citing that, the carefully prepared and scrupulously conducted trial of those who attempted to bring the World Trade Center down in 1993 had zero deterrence value. Furthermore, that ‘to catch the devil, they explained, we need to scythe our way through the tangle of procedural restraints that normally obstruct executive discretion. That rights against the state have become a liability rather than asset, giving the instance where the chief judge of the special federal court that supervises national security wiretaps had to force the FBI to shut down from “10 to 20 Qaeda wiretaps” in the year before 9/11 because apparently furious that the FBI had lied in their applications to conduct surveillance (Hirst and Isikoff, 2002:32).[23]


The argument is not against the need for a more comprehensive and robust national security measures. But the paramount need to respect and maintain rules and laws that are designed to ensure humanness fundamentals are not subjected to gross abuses as being experienced in the fight against terrorism thus sacrificing civil liberties.

Disproportionate use of counterterrorism instruments under the protective cover of national security and heavy handed discriminating policies as seen in the London Forest gate incident will certainly not enhance national security. It is thus argued that a legislative measure against terrorism has to be proportionate in other to win the heart and minds of perhaps tomorrow’s likely terrorist.

Beck and Arend identify three approaches to the principle of proportionality in response to terrorism. The first approach may be called ‘eye for an eye’ or ‘tit for tat’ proportionality. This means that a victim state must respond proportionately to some prior act of terrorism.118 The claim of self-defence must be rejected if ‘the nature and amount of force used is disproportionate to the character of the initiating coercion’.119
The second approach may be called ‘cumulative proportionality’. The proponents of this approach contend that the victim state's forcible measures should be proportionate to an aggregation of past illegal acts. For instance, Guy Roberts says that the equivalence in number of deaths and extent of property damage is the sine qua non of proportionality. He asserted that proportionality must be calculated on the basis of prior events. An accumulation of small events can justify a single larger retaliatory response in certain cases.120
*J.C. & S.L. 124 The third approach may be called ‘deterrent proportionality’. This approach argues that the victim state's use of force must be proportionate to the overall terrorist threat faced by the state. Professor O'Brien believes that counter-terror measures should be proportionate to the purposes of counter terror deterrence and defence and the referent of proportionality should be the ‘overall pattern of past and projected acts’.121 Professor Schachter contends that ‘tit for tat’ is not the only test for proportionality. There are two others: (a) the response in relation to a continuing pattern of attack rather than the last one and (b) proportionality judged in terms of the ends sought, for example the cessation of attacks and the means used.122 Similarly, Professor Baker states that self-defensive measures should be weighed against all attacks prior to the response and the probability and size of future attacks.123
The first two approaches makes more sense as it will be easy to measure the damage done in the case of one or more attacks. The third approach seems to be risky in that the size and probable damage cannot be measured in the case of probable future attacks. No one knows the exact size of damage in any probable attack. For instance, in the case of the 11 September 2001 attacks; one plane did not hit its target and fell into the fields of Pennsylvania. It raises two questions: (a) that the probable attack may be aborted and does not occur at all and (b) the planned attack may not happen in the manner it is planned. Hence, this approach or at least the part dealing with ‘probable and size of future attack’ is problematic and it would be very hard to decide what is proportional. Greater risk of abuse is involved in this approach.



Who decides the question of ‘enough’?

The right of self-defence is a self-judging principle but the international community must judge its propriety.124 If the victim state claims that it has the exclusive authority to determine the lawfulness of the use of force in self-defence, then ‘the law has reached a vanishing point’.125 The Nuremburg International Tribunal also rejected this argument when the Nazi leaders argued that Germany had acted in self-defence and in any given case, it is to the state to decide whether it has such a right.126 The right of self-defence can be initiated at the discretion of the state that is when the state believes that it has been attacked or such *J.C. & S.L. 125 attack is imminent. However, the final assessment of its lawfulness lies with the international community.
The right of self-defence is a general principle of law … It is recognised to the extent… that recourse to it is not itself illegal. It is regulated to the extent that it is the business of the courts to determine whether, how far and for how long there was a necessity to have recourse to it. There is not the slightest relation between the content of the right of self-defense and the claim that it is above the law and not amenable to evaluation by the law. Such a claim is self-contradictory in as much as it purports to be based on legal right and as, at the same time, it dissociates itself from regulation and evaluation by the law.127
A state has an initial power to qualify its actions as being in self-defence, and this classification continues to operate unless the international community determines otherwise. The same is true with regard to the termination of the right to act in self-defence. If, despite a call for a cease-fire by the Council, hostilities continue, it is for the community to decide upon the consequences that flow from the failure to abide by the Council's decision.128 Professor Waldock asserts that it is for the Security Council to determine whether the right to self-defence has come to an end.129 ‘If the Council is paralysed and fails to take any measure necessary to maintain international peace and security, the legal position is equally obvious: a Member State exercising the right of self-defence may persist in the use of force’.130
The right to self-defence is the natural and independent right of a state. It can be initiated and may continue as long as is necessary in the opinion of the victim state until either the objective for using force is achieved or the Security Council has taken effective measures. However, decisions on its lawfulness and propriety are for the international community at large and organisations such as the United Nations, regional organisations and interested individuals.


Western Policy on Terrorism
The world at large, except for the terrorist and their supporters has reacted vehemently to terrorism. Be it State sponsored in the name of national security or Islamic fundamentalist, the likes of Osama Bin Laden - Al-Qaeda, terrorism is a cowardly and despicable act and not to be to tolerated in any society. Robert Elias, explained that, “the perpetrators must be brought to justice”[24] this paper agrees, however, it questioned, what when the act was committed by a powerful State such as the United States in the name of national security? When a super power that ought to be a custodian of international law, gravely dilute it by undermining the UN Security Council, how can justice be properly served, or is same violator to be judge and jury?

Western nations swiftly introduced measures aimed at eliminating terrorists, but the question remains; can it ever be completely eradicated without foreign policy changes, in other words, understanding the root causes of terrorism? Western Nations especially United States is convinced that the perpetrators of terrorist acts – Islamic fundamentalist hates our democratic way of life and thus seek by all means necessary to change or destroy our way of life. In the aftermath of 9/11, it was argued that “in trying to understand why this terrorism has occurred, we’ve been given little help by those upon which we rely for information ... our officials refuse to ask the question “why,” except in terms of stereotypes that divert us from the causes and focus us instead of the symptoms.”[25] There is always another facet to any argument, likewise there is no fire without its cause, and it should not be inconceivable that, in this respect, American foreign policy may have single headedly provoked the barbaric and cowardly acts of 9/11 and any other acts of terrorism, past and present. 9/11 and SS Cole has proven to be the backlash that some commentators predicted against the US foreign policies. Former US Secretary of State Lawrence Eagleburger admitted, a few years ago, that: “We’ve presented to the rest of the world a vision of the bully on the block who pushes a button, people out there die, and we don’t pay anything except the cost of a missile... that’s going to hunt us in trying to deal with the rest of the world in the years ahead.” It is clear that such words of wisdom were discarded, the consequences are all but crystal clear for all to see: Islamic fundamentalist have concluded that Americans need to begin suffering in order to change the United States policies towards to the Muslim world.[26]

The United States spearheaded a campaign of far reaching legislative ‘USA-Patriot Act’ measures to combat terrorism. A matrix of international and domestic law was constituted in which concerns for security were introduced at the expense of human rights.[27] Countries like United Kingdom, Canada, Australia, pursued similar measures. These measures enjoyed by the government agencies are very extensive powers of stop and search, seizure of goods or properties, arrest and detention without trial. It has to be said that many of these measures violates fundamental human rights.

The United Kingdom introduced legislative measures[28] in the wake of the London bombings of July 2005 and, amongst other things, creates new offences, such as encouragement of terrorism, disseminating terrorist publications, and training for terrorism. It also extends the power of the Home Secretary to proscribe terrorist groups and allows proscription to continue when the organisation changes its name. Most controversially, the 2006 Act permits those suspected of terrorist offences to be detained and questioned by the police for up to 28 days without charge, though periods of more than two days must be approved by a judicial authority. There can be no doubt that the damage to the mental health, personal and family relationships and employment of those detained for periods as long as this is likely to be considerable. Furthermore, being in prolonged police detention puts detainees under considerable pressure to confess. However, the evidence from Northern Ireland indicates that most confessions in such processes are, in fact, made in the first 48 hours. It is also well known that detention regimes such as these can produce false confessions which, in their turn, can lead to miscarriages of justice.

The 28-day pre-charge detention period would, therefore, appear to constitute a violation of human rights. But this is not entirely clear cut. The problem is that the appropriate length of pre-charge detention cannot be determined precisely by reference to human rights standards because international human rights instruments do not specify exact limits. The requirement found in the European Convention on Human Rights, for example, is that those arrested shall be informed “promptly” of the reasons for the arrest and any charge against them (Art.5(2)), and that they shall be brought “promptly” before a judge (Art.5(3)). The European Court of Human Rights has also refused to read precise time-frames into these provisions and prefers instead to decide each case on its merits with reference to the relevant context. The Government believes the 28-day detention power complies with the Convention and, by contrast with the power of preventive detention in the 2001 Act, has not sought to suspend the right to be brought promptly before a judge by entering derogation under Art.15. In any litigation before the European Court of Human Rights the key question would, therefore, be: what characteristics does the current terrorist threat have for the United Kingdom which may justify such an extended power of pre-charge detention? The Government originally advocated a 90-day period on the grounds that much more time is required, compared with other offences, to examine both the international connections of contemporary terrorist networks and the complex information technology, including mobile phones and computers, upon which they typically rely. Twenty eight days was, therefore, a compromise. Clause 22 of and Sch.1 to, the Counter-terrorism Bill 2008 seek to extend this period to 42 days. However, the fact that the United Kingdom's 28-day pre-charge detention period is considerably longer than that of any other western democracy, including other Convention Member States and the United States, tends greatly to undermine the claim that it is necessary and proportionate. It is doubtful, therefore, if 28 days, let alone 42, could be deemed to satisfy the Convention test.
In a blow to the government's anti-terror measures, the House of Lords ruled by an eight to one majority in favour of appeals by nine detainees. That "Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford.”
Detaining foreign terrorist suspects without trial breaks human rights laws, the UK's highest court has ruled.[29] It is left to be seen whether Gordon Brown can pass the proposed 42 days detention of terrorist suspect without trial into law where Tony Blair had failed in trying to extend the detention-without-charge period to 90 days in 2005.The 42-day proposals came under renewed attack from former Attorney General Lord Goldsmith, who warned the move would be an attack on the country's "fundamental freedoms".

QLike the United Kingdom, the Federal government of Canada created Canada’s first anti-terrorism legislation.[30] The "omnibus" bill grossly extends the powers of government and institutions within the Canadian security establishment[31], thus trampling on civil liberties under the guess of national security. The security establishment can arrest people and hold them without charge for up to 72 hours if they are suspected of planning a terrorist act. The expanded powers were highly controversial due to widely[32] perceived incompatibility with the Canadian Charter of Rights and Freedoms, in particular for the Act's provisions allowing for 'secret' trials, preemptive detention, and expansive security and surveillance powers.[33]Of the two clauses that are at the heart of the debate, one allows police to arrest suspects without a warrant and detain them for three days without charges if police believe a terrorist act may be committed. The other would allow a judge to compel a witness to testify in secret about past associations or perhaps pending acts under penalty of going to jail if the witness doesn't comply.

Blow Back
In an attempt for the Western world to impose democracy in the middle east and promote her interest irrespective of the regions desires, foreign policies where formulated and implemented, the norms of international order, laws was disregarded or manipulated in other achieve those aims. The consequences - blow back, otherwise known as, “an eye for an eye” of those acts is what has now come brought about all the despicable, barbaric acts and utter disregard for human lives as perpetuated by those we now term as terrorist.

Western Policy and International Law
The aftermath of 9/11 brought to the fore front how the war on terror was advanced by President Bush and former UK premier Tony Blair severely undermined international criminal and human right laws. It is herein argued that, in the context of President Bush foreign policies: war against terrorism, disregards for customary and international law; human right laws became clothed as laid down by the United Nations, it is hard to comprehend how law and power can ever be brought into a relationship in which there is a perspective for justice, as suggested by Bill Bowring.[34]

As the aftermath of September 11 has progressed, the United States’ view of international law has become increasingly out of step with the rest of the world, including her allies. The rejection of the international Criminal Court has become a central aspect of United States policy. The DeLay Act gives the administration powers to cut off military aid to states that do not enter into agreements with the United States to prevent the prosecution of United States citizens before the Court. The law also permits a US government to use military means to free any Americans that might be detained by the Court.[35] It is surprising to hear President Bush use such term “outlaw” loosely when the United States that is a great preacher of democracy and observance of the rule of law, domestic or international, flouts it at a wimp whenever it does not suit her purpose. It thus begs the question, if you as supreme tutor fail to abide by your teachings, what right do you then have to call others “outlaw?”

The war against global terrorism cannot be won with “shock and awe” might, as the case of Iraq has demonstrated because the United States had engaged and dragged her allies into unrealistic political war, that bears no connection in any facet to September 11 and the outcome has made the United States and her allies less safer today. United States presidential for 2008, Barrack Obama nailed that point “because of war in Iraq that should never have been waged, we are now less safe than we were before 9/11.”[36] Anita Inder Singh, further enlightened our minds as to these never ending war on terror, “political cynicism and inhumane warfare have yet to show signs of a successful anti-terrorist war, rather the opposite. Increasing Taliban violence in Afghanistan, where the war against terrorism started, the mess created by the illegal Anglo-American invasion of Iraq, and the talk of western "exit strategies" and "retreat", bear this out”.[37] Iraq has now become a breeding ground for terrorist sponsors contrary to what President Bush would have us believe.

Curtailment of civil liberties
After September 11, 2001 the then Home Secretary, David Blunkett rushed through British counter-terrorism legislation – The Anti-Terrorist, Crime and Security Act, certified by him as being compatible with the European Convention on Human rights. But many of its provisions were widely criticised for curtailing civil liberties. Similarly, in Canada, the anti-terror legislation was perceived to have grossly infringed on civil liberties. Counterterrorism measures as illustrated in some cases have seen a complete flouting of international law and disregards for human rights. International criminal and human rights law are intrinsic to world order – peace and security, as established in the United Nations charter signed into law after the Second World War in Europe in June 1945.

Conclusion
The paper argued also, that, should the west choose a foreign policy route that is engaging, compassionate, abides and respect international law, such policy changes should also encompass nations that their sovereignty were previously, severely undermined. Only then, will the process of uprooting the causes of terrorism can begin. But before that, is the need for understanding of what spouse these people to engage in acts of terror.
[1] For the definition of the term, see for example, http://www.terrorismanswers.com/home


[4] See for example, Gold, D., and (2003) Hatred Kingdom: How Saudi Arabia Supports the New Global Terrorism. Washington DC: Regnery Publishing Inc. Chapter 1
[5] See for example Miller, J., (1999), “Greetings, American. My Name is Osama bin Laden Frontline Website http://wwww.pbs.org/wgbh/pages/frontline/shows/binlade/.
[6] Middle East Media Research Institute: Special Dispatch. 2003, January 6. www.memri.org/bin/articles.cgi?
[7] See Qur’an Chapter 2:193)
[8] Sachedina, A., From Defensive to Offensive Warfare: The Use and Abuse of Jihad in the Muslim World. http://www.people.virgina.edu/~ass/article/article8.thm
t Al-Qaeda is abusing the doctrine of jihad.t groups, iide bombing, take away the lives of innocent people, one may conclude tha
[9] Ibid.
[10] Ibid.
[11] Qur’an Chapter 9:5
[12] Don’t Abuse the Concept of Jihad: Grand Mufti; Riyadh, 22 August, 2003. http: www.allaahuakbar.net/JIHAD
[13] See Article 51 of the United Nations Chapter
[14] Shah, A. Niaz (2007) Journal of Conflict & Security Law: Self-defence, anticipatory self-defence and pre-emption: international law's response to terrorism

[15]Ibid, ICJ Rep. 1986.
[16] Article 2.4 of the UN Charter and corresponding customary rule
[17] See Law after ground zero, 2002.
[18] Ibid
[19] Ahmad, M. T. (1989) Murder in the Name of Allah. Cambridge: Lutterworth Press
[20] (Ch. 6:109)
[21] (Ch.4:151)
[22] Holmes, S. (2002) Why international justice limps. (International Justice, War Crimes, and Terrorism: The U.S. Record). http://www.encyclopedia.com/doc/IGI-97756593.html visited 11/05/2008
[23] ibid
[24] Terrorism and American Foreign Policy (September 25, 2001). http://www.tanbou.com/2001/fall/USForeignPolicyElias.htm (visited May 1, 2008)
[25] ibid
[26] ibid
[27] See Strawson, J., above at p. xiii
[28] The Terrorism Act 2006
[29] See BBC News (Thursday, 16th Dec 2004) http://news.bbc.co.uk/1/hi/uk/4100481.stm
[30] The Anti-terrorism Act (Bills C-36 and C-42) 2001
[31] http://www.justice.gc.ca/eng/antiter/index.html
[32] On Oct. 24, 2006, a Superior Court judge struck down the motive clause, saying it violates the Charter of Rights and Freedoms. The judge was working on the case of Mohammed Mormin Khawaja, the first person charged under the new anti-terror provisions.
[33] http://www.cbc.ca/news/background/cdnsecurity/
[34] Stawson, J. (2002) Law after ground zero: Ch 1, The degradation of international law.
[35] Ibid, p.xiii
[36] Remarks of Senator Obama: The war we need to win. Washington, DC, August 01, 2007. http://www.barackobama.com/2007/08/01/the _war_we_need_to_win.php
[37] http://commentisfree.guardian.co.uk/anita_inder_singh/2008/01/blowback_in_the_war_on_terror.html

DARFUR: Critical Evaluation of the International Community's Response to the Crisis

The role being played by the international community in connection with restoration of peace in the Darfur region of Western Sudan has attracted concerns all over the world. Virtually, no single activity embarked upon by the United Nations (UN), which is intended to contribute to the end of the crisis prevailing in Darfur, has been able to escape comment from international lawyers and academic commentators. Perhaps it is fair to say that any commendation or condemnation directed at the UN for its response to the crisis is justifiable.

The humanitarian crisis in Darfur began in 2003, and since mid 2004, the crisis has reached such a height that it is almost beyond description. The crisis is the result of an armed conflict between the Sudanese government and two main rebel groups called the Sudanese Liberation Army (SLA) and the Justice Equality Movement (JEM). The Sudanese government sponsored a group of Arab militias called Janjaweed, which was entrusted with the duty to assist the Sudanese troops in targeting and attacking civilians perceived to be helping and harbouring the rebels. Most of the victims of the crimes committed in Darfur are ethnic black Africans and the rebel groups have been fighting against the Sudanese government over its alleged policies of discrimination, marginalization and underdevelopment of their southern region.[1]

Needless to say, the situation in Darfur is a pathetic one. The UN, and for that matter the international community, is currently striving to restore peace in Darfur by adopting measures to bring the perpetrators of the crimes committed in the area to justice and to obtain reparation for the victims. However, before examining such measures, it is fair to hurl criticism at the UN for its initial inaction. There is no doubt that the crisis could have been prevented at least from reaching its present level had the UN responded promptly to the conflict between the Sudanese government and the rebels. As the executive director of the ‘Minority Rights Group’ (MRG) puts it, “this level of crisis, the killings, rape and displacement could have been foreseen and avoided ... Darfur would just not be in this situation had the UN systems got its act together after Rwanda: their action was too little too late."[2]

The Darfur region has about five million people, most of whom are ethnic black Africans with some Arabs. Whereas the militias fighting on behalf of the Sudanese government employed systematic crimes of ethnic cleansing and slavery to force the southern native black Africans to abandon their way of life, the rebel groups mainly targeted government institutions such as police stations and an airport. They also attacked military aircrafts and killed scores of soldiers. More than thousands of civilians have killed in Darfur since 2003 particularly by the Janjaweed. Another inhumane act committed by the Janjaweed was that it members blocked the flow of food and humanitarian aid meant for the people who had been displaced by the conflict. Such and act was intended to flee the area of the conflict. The militias also indiscriminately committed crimes and human rights abuses, which included rapes, massacres and forced evictions and destruction of water sources. In fact the crisis was such that it has been described by the UN 'as the world's worst humanitarian crisis'[3] Even before the Commission of Inquiry was establish to investigate the situation, a two UN human rights fact-finding reports revealed that many of the acts committed in Darfur might constitute war crimes and/or crimes against humanity and made recommendations to alleviate the suffering of the displaced, to redress the wrongs committed, and to bring the perpetrators to justice[4]

As a starting point of its response to the crisis, which clearly satisfies the requirements of an internal armed conflict under Article 3 of the Geneva Conventions, the UN Security Council adopted a resolution in July 2004 (Security Council Resolution 1556 (2004)) under Chapter VII of the UN Charter, which approved the peace accord signed by the Sudanese government and the rebel groups to end the war. This resolution also required the Sudanese government to disarm its sponsored group, the Janjaweed militia, within thirty days and to punish its members responsible for committing atrocities and human abuses. The resolution contained a threat to impose economic sanctions should Sudan fail to comply.[5] A subsequent resolution (SC Resolution 1564 (2004)) adopted on the crisis in September 2004, threatened to impose additional sanctions on Sudan should it continue to disregard the first resolution.[6] This resolution also requested the UN Secretary-General to set up a Commission[7] of enquiry to investigate “reports of violation of international humanitarian law and human rights law in Darfur by all parties”. It is the recommendations contained in the Commission’s report and referral of the situation in Darfur to the International Criminal Court (ICC) which this paper examines in detail.

The Commission set up by the Secretary-General submitted its report (Report of the International Commission of Inquiry on Darfur to the Secretary-General) to the Secretary-General on 25 January 2005. It must be mentioned that upon the request contained in the Security Council Resolution 1564, the Commission was also entrusted to determine whether or not acts of genocide had occurred. According to Article 5 of the Rome Statute, which established the ICC, the ICC has jurisdiction in accordance with the Statute with respect to the crime of genocide, the crimes against humanity, war crimes and the crime of aggression. With regard to the meaning of genocide, Article 6 of the Statute provides the following:

For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

The Commission found that the Sudanese government has not pursued a policy of genocide. It is clear from the report that the actus reus of genocide, that is the killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction were found to have occurred. There was also the existence of a protected group being targeted by the authors of criminal conduct. What appeared to be missing, according to the report, was the element of genocidal intent. The report further states:

Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.

The commission, however, found that international offenses such as the crimes against humanity and war crimes have been committed in Darfur and that such crimes are no less serious and heinous than genocide. According to the report, there are individual perpetrators who are possibly responsible for the crimes committed in the region. They include officials of the Sudanese government, members of militia forces, members of rebel groups, and certain foreign army officers acting in their personal capacity. The report also found that some government officials, as well as members of militia forces, are also responsible for joint criminal enterprise to commit international crimes. The Commission emphasized in the report that it “makes an assessment of likely suspects, rather than a final judgment as to criminal guilt. The Commission’s conclusion thus runs contrarily to that of the United States’ Congress, which unanimously described the Darfur crisis as ‘genocide’ in July 2004.[8]

The Commission emphasized the need to do justice by referring to the gravity of the crimes committed against the innocent civilians in Darfur. The report advises that those responsible for the crisis must be brought to justice, and measures must also be initiated to bring relief and redress to the victims ‘to complete the process of accountability. Accordingly, the Commission called on the Security Council to immediately refer the Darfur situation to the International Criminal Court (ICC), pursuant to Article 13 of the ICC Statute.[9] The Commission calls upon the Security Council to immediately refer the Darfur situation to the International Criminal Court[10], Pursuant to Article 13(b) of the ICC Statute. The reason for the Commission’s recommendation is that the Darfur situation constitutes a threat to international peace and security. According to the Commission, serious violations of international human rights law and humanitarian law by all parties are continuing. The belief entertained by the Commission is that the prosecution by the ICC of the persons allegedly responsible for the ‘most serious’ crimes in Darfur would contribute to the restoration of peace in the region.

Perpetrators of violations of international humanitarian law and human rights law can be tried by a national court or an international court such as the ICC. The ICC is a court of last resort. This means that if a case is investigated or prosecuted by a national judicial system it will not act unless the national judicial system cannot be relied upon for genuine or fair trial. The Commission has proposed to the Security Council to refer the Darfur situation to the ICC and not to a national court. The Commission states the reason why it believes that a Sudanese national court is not an appropriate court to try the alleged offenders:

…the very nature of most international crimes implies, as a general rule, that they are committed by State officials or with their complicity; often their prosecution is therefore better left to other mechanisms. Considering the nature of the crimes committed in Darfur and the shortcomings of the Sudanese criminal justice system, which have led to effective impunity for the alleged perpetrators, the Commission is of the opinion that the Sudanese courts are unable and unwilling to prosecute and try the alleged offenders. Other mechanisms are needed to do justice. [11]

The Commission also entertains the view that the ICC is the court to be resorted to for a number of reasons. First, the Commission contends that the ICC was established with an eye to crimes likely to threaten peace and security. According to the Commission, the investigation and prosecution of crimes perpetrated in Darfur would have an impact on peace and security. The Commission further contends that, it would be conducive, or contribute to, peace and stability in Darfur, by removing serious obstacles to national reconciliation and the restoration of peaceful relations. Although it will be unfair to disrespect the views of the Commission, it has to be said that the ICC cannot be honestly described as the only appropriate court or, as the Commission put, ‘the only credible way’ of bringing the alleged perpetrators of the crimes committed in Darfur to justice. In fact, there will not be any need to take a case to the ICC if a national court undertakes to investigate and prosecute perpetrators of violations of humanitarian law and human rights law. The Commission’s assertion implies that only the ICC can be relied upon for the fair trial of persons accused of violating humanitarian law and/or human rights law. However, as the world witnessed recently, the former president of Iraq, the late Sadam Hussein, was successfully tried by an Iraqi national court for similar offences. The fact that the ICC “was established with its eye to crimes likely to threaten peace and security” does not also guarantee that resorting to it for the trial of the alleged “Darfur offenders” will contribute to peace and security in Darfur. One would have rather loved to hear nothing more than that the ICC should be resorted to because the Sudanese government is unable or unwilling to act.

Another of the reasons given by the Commission for its assertion that the ICC is the only credible way of bringing the alleged offenders to justice is that the ICC could be activated immediately without any delay – which would be the case if one to establish ad hoc tribunals or so called mixed or internationalised courts. The Commission’s claim is unfounded because although the Security Council referred the Darfur situation to the ICC on March 31 2005 the alleged offenders are yet to be brought to justice.[12] To date, all that is known is that the ICC on 1 May 2007 issued a warrant of arrest for the Minister of State for Humanitarian Affairs in the present Government of the Sudan, Mr Ahmad Muhammad Harun.[13] Besides, the ICC is a newly established court, and therefore whether it is capable of trying a case without delay remains to be seen.

Prior to the Commission’s report, it was hoped that a special tribunal could be set up by the UN Security Council for the trial of the perpetrators of the crimes committed in Darfur, as was the case in countries such as Rwanda for similar crimes. In fact, having a special tribunal to try the alleged perpetrators would have meant that the international community considered the Darfur situation as a special issue which deserves a special attention. However, the Commission advises against other mechanisms for bringing the alleged perpetrators to justice. The reason given by the Commission is that other mechanisms, such as ad hoc tribunals are very expensive and ‘slow in prosecution and punishment of indicted persons.[14] One would have found it reasonable to agree with the Commission if it had argued that since there exists now an international criminal court there is no need for a new mechanism to be put in place to secure the prosecution and punishment of the alleged offenders. As said above, the ICC, being a new court, has no relevant decisions which can be cited in support of an assertion that proceedings in the court will suffer no delay. Clearly, it is the circumstances of a given case that determines how long proceedings will last in court.

The ICC prosecutor took office on 13 June 2003 and since then there have been three self-referrals. Uganda referred to the prosecutor on 29 January 2004, The Democratic Republic of Congo on 19 April 2004 and the Central African Republic on 7 January 2005. Clearly, the rationale for all these self-referrals was to get the prosecutor to conduct investigations into crimes alleged to have been perpetrated by rebels fighting against central authorities. Much as this may be seen as attesting to the fact that a new mechanism for the trial of perpetrators of international crimes has emerged, it is difficult to pinpoint any fruit that these self-referrals to the ICC have yielded. As regards the Darfur situation, the prosecutor had, until a warrant was issued for the arrest of the alleged perpetrators of the crimes in question, reported more than two times to the Security Council, pursuant to resolution 1593 (2005). Given that the Sudan has not yet ratified the Rome Statute, the arrest and trial of the alleged perpetrators of the crime are bound to encounter resistance. Not long after the referral of the case to the ICC, the Sudanese authorities made it clear that if the ICC wanted to carry out observation task, in connection with the Sudanese judicial authorities in order to feel relieved and certain, the Sudanese government had no problem or objection. However, said the Sudanese authorities, if the ICC wanted to begin any procedures to try Sudanese citizens, ‘this is unacceptable.[15]

What Articles 12(3) and 87(5) of the Rome Statute imply is that states that are not party to the treaty are not under obligation to co-operate with the ICC. The treaty will only be binding upon them if they have signed an agreement to co-operate with the court.[16] Apart from not being a state party, the Sudan has not, by declaration lodged with the ICC’s Registrar, accepted the exercise of jurisdiction by the court with regard to the crimes committed in Darfur. Thus it is the Security Council, acting under Chapter VII of the UN Charter, which has triggered the ICC’s jurisdiction by a referral to the court’s prosecutor, pursuant to Article 13 (b) of the Rome Statute. How then, could the ICC be described as the only credible way of bringing the ‘Darfur perpetrators’ to justice? To say the least, the picture painted about the ICC by the Commission is regrettable. It is as if the ICC, which has no jurisdiction over certain categories of international crimes[17] has no shortcomings of its own. It is difficult to imagine how the ICC, which is meant to rely on state co-operation, can function efficiently without such co-operation.

The Security Council has kept itself busy with deliberations on the Darfur situation even after referring the case to the ICC’s prosecutor. Obviously, this explains the Council’s determination to help restore peace in Darfur as soon as possible. Another possible reason is that it is trying to atone for its initial inaction, which caused it much criticism. However, the criticism will not go away in as much as there are still reservations about the fairness and objectivity of the ICC. It is the Security Council’s way of handling the situation that has brought the fairness and objectivity of the Court into question. The case has been referred to the ICC, a judicial body, yet the Security Council cannot stop meddling in the case. The Council’s resolution 1672 (2006), has placed member states under obligation to adopt sanctions against a number of Sudanese nationals involved in the Darfur conflict. The sanctions include freezing of assets abroad and prevention of international travel. It has been argued that the legitimacy of the ICC would not be sustained on the basis of occasional referrals based on political expediency but would depend on the consistency of its work.[18] The sanctions against individuals allegedly involved in the conflict have also been described as ‘mainly symbolic’ on the grounds that those persons are unlikely to have financial assets abroad or be interested in international travel.[19] Thus, even before the ICC begins its trial of the alleged perpetrators of the crimes committed in Darfur, which has to date shown no perceptible sign of coming to an end, its credibility has, to some extent, been undermined by the conduct of a political institution. The consequence of this is that people all over the world are observing the ICC’s handling of the matter with keen interest.

The international community has also taken it upon itself to seek compensation for the victims. Given what the victims have gone through, it is impossible to find any reason to criticise such a move. What cannot, however, escape comment is the manner in which the compensation is to be sought. The Commission of inquiry recommends that a compensation commission, which will deal with compensations for the victims, be set up by the Security Council. The Commission's proposal, according to the report, is based on moral as well as legal grounds. It is reasonable to accept that if the seeking of compensation is based on moral grounds then the ICC as a judicial body does not have to be involved. Nonetheless, it is difficult to picture how award of compensation based on moral grounds will not encounter any problem. Victims of rape are not going to be identified by the compensation commission itself. What then will be the test for proving a claim based on rape? Will any individual who claims to be a victim of rape have to undergo a medical examination to prove her case? Regrettably, the Commission's report fails to take account of this eventuality. The Commission argues that

The Commission's proposal also raises the issue of the scope of international law. International law regulates relations between states.[20] On the face of it, individual persons cannot resort to it for compensation. Individuals seek compensation in their national courts for any damage or injury suffered as a result of a state's or another individual’s conduct. This is something the Commission acknowledges in its report. However, in an attempt to justify its proposal for the establishment of a compensation commission, it states in the report:

The emergence of human rights doctrines in the international community and the proclamation of human rights at the universal and national level since the adoption of the United Nations Charter in 1945 had a significant impact on this area as well. In particular, the right to an effective remedy for any serious violation of human rights has been enshrined in many international treaties. Furthermore, the United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly in 1985, provides that States should develop and make readily available appropriate rights and remedies for victims.[21]

The ICC, which the Commission describes as the only credible mechanism by which the 'Darfur offenders' can be brought to justice, is not seen by the same Commission as a credible or reliable institution to deal with the award of compensations for the Darfur victims. The conclusion that may be drawn is that if award of compensation based on legal grounds is to be entrusted to a commission, which the Security Council is advised to established, then the resort to ICC is far from being the only credible way of bringing perpetrators of international crimes to justice. Similarly, as mentioned above, cost was one of the Commission's reasons for advising against the establishment of an ad hoc committee for the trial of the alleged 'Darfur Offenders'. It is surprising therefore as to why the Commission failed to realise that it is equally expensive to establish a commission to deal with compensation for the victims. With regard to the proposal in question, Tomuschat asserts that:

The creation of a system that would grant compensation also to crimes not only perpetrated by the Janjaweed militias, but also by the rebel movement groups, would bring the Security Council to the outer limits of its jurisdiction. Essentially, the Security Council has been entrusted with powers needed to rein in injustices committed by states. However, the Report has found that the Government of the Sudan bears overall responsibility for the injurious consequences, given its connivance with the Janjaweed forces or, in any event, its laxity in taking protective measures. As far as the rebel movement groups are concerned, according to a practice extending over decades, the Security Council has also addressed such movements by often treating them on the same footing as governmental authorities. Furthermore, a reparation scheme would be profoundly marred by injustice if it used distinctions based on the governmental or non-governmental appurtenance of the perpetrators, which, in many instances, cannot be reliably ascertained.[22]

It can be said that the apart from its initial inaction the international community has performed below expectation with respect to restoration of peace in Darfur. The Security Council's adoption of a number of resolutions by the UN Security Council for the achievement of the same goal is also nothing to write home about. The view that the referral of the case to the ICC does not guarantee international peace and security is shared by many commentators. It has been argued that the ICC could never be a panacea for the ills of international criminal justice nor would it be the answer to states' practice of impunity for international crimes. But it could contribute to the process of narrowing that gap.[23]

In conclusion, the case has already been referred to the ICC, and its withdrawal is highly unlikely. It is hoped that sometime in the future the perpetrators of the crimes, whose arrest and trial has been sanctioned by the Court, will be brought before the Court, but it must be reiterated the international community's response to the conflict is far from ideal.



Reference
[1]Islam, Rafiqul, M. “The Sudanese Darfur Crisis and Internally Displaced Persons in International Law …” International Journal of Refugee Law, 2006 18 (354)
[2]Lattimer, Mark. "UN could have averted Darfur crisis - MRG", Independent Online, October 16, 2006
[3]Kofi Annan's address at Harvard University on 8 July 2004, http:/ /www.cnn.com/2004/WORLD/africa/06/11/sudan.un/index.html.
[4]Report of UNHCHR on 'situation of human rights in the Darfur region of the Sudan', Commission on Human Rights, 61st session, Item 4 of the provisional agenda, UN Doc. E/CN.4/2005/3 of 7 May 2004, 22-25.
[5]http:/ /www.un.org/apps/news/story.asp?NewsID=11271&Cr=sudan&Cr1=; http:/
[6]Measures threatened included oil embargo
[7]The Commission was set up in October 2004 and was composed of five members
[8] http:/ /www.cnn.com/2004/WORLD/africa/07/23/un.sudan.ap/?headline=congress
[9]Paragraph 565 of the report
[10]The Security Council referred the Darfur crisis to the ICC on 31 March 2005
[11]Para 568 of the report
[12]The Prosecutor, however, initiated investigations and submitted a progress report to the Security Council on 13 December 2005
[13] http:/ /www.icc-cpi.int/cases/current_situations/Darfur_Sudan.html.
[14] Paragraph 574 of the report
[15] English-aljazeela.net/NR/exeres/554FAF3A-B267-427A-B9EC-54881BDEOA
[16]Rome Statute, article 12(3)
[17] The Court has no jurisdiction over aggression and terrorism
[18] Bassiouni, Cherif, M. ‘The ICC – Quo Vadis?’ Journal of International Criminal Justice, 2006, Vol.4 No.3 (421)
[19] Cassese, Antonio, ‘Is the ICC still Having Teething Problems? Journal of International Criminal Justice, 2006 Vol. 4 No.3 (434)
[20]This is what the 1949 Geneva Convention is all about.
[21]Paragraph 595 of the report
[22]Tomuschat, Christian, Darfur – Compensation for the Victims, International Journal of Criminal Justice, 2005, Vol 3 No. 3 579
[23] Ibid. fn 18