Gwynne Dyer: Omar al-Bashir and international law

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      Sudan’s President Omar al-Bashir, facing an arrest warrant from the International Criminal Court (ICC) for genocide and war crimes, fled from an African Union summit meeting on Monday (June 15) before the conference ended.

      The South African High Court was going to order him arrested and handed over to the ICC, but the South African government let him fly out of a military airport near Pretoria.

      There is outrage in South Africa at this breach of the law, but there is also a belief in the rest of the continent (especially among national leaders) that the ICC is prejudiced against African countries.

      Is the ICC out of control, or is it just trying to do its job?

      President Jacob Zuma’s government had a serious public relations problem. In the past month South Africa has seen a great deal of xenophobic violence against illegal immigrants and their property. It’s embarrassing for Zuma, and clearly contrary to the spirit of African solidarity, so he felt that he couldn’t let an African head of state be arrested while attending an AU summit in his country.

      The resentment of poor South Africans at the presence of so many illegal immigrants from other African countries (probably between five and 10 percent of the population) is understandable but inexcusable. The right solution is for South Africa to take control of its borders, but meanwhile Zuma has to placate his African Union partners.

      Zuma had to sneak Bashir out of the country because South Africa’s High Court is still independent, and it was about to rule that Bashir must be handed over to the ICC for trial. Indeed, Judge Dunstan Mlambo did rule exactly that—“The government’s failure to arrest Bashir is inconsistent with the Constitution”—only hours after Bashir fled.

      Well, obviously. Since South Africa is one of the 123 countries that signed up to the ICC, it is legally obliged to enforce its arrest warrants. Some other African countries also take the ICC seriously. In 2012, an AU summit was moved from Malawi after the government refused to let Bashir attend, and in 2013 the Sudanese president had to leave Nigeria earlier than planned after a rights group went to court to compel the authorities to arrest him.

      But most African governments now ignore ICC rulings because, they claim, the court only targets African criminals—and it’s true that all the arrest warrants now in force are for Africans. This understandably causes deep suspicions in the African continent.

      Under the same international laws, shouldn’t former U.S. president George W. Bush be indicted as a war criminal for illegally invading a sovereign country, Iraq? No, actually, because the ICC can only arrest the citizens of countries that have signed up to the ICC, and the United States hasn’t.

      (Neither has Sudan, but there is an exception for war criminals who are specifically designated by the United Nations Security Council, as Bashir was.)

      The wounds of colonialism are still raw, and it just feels wrong. But which of these people would you want to drop from the list?

      Joseph Kony, the self-proclaimed prophet whose Lord’s Resistance Army murdered tens of thousands of innocent people in northern Uganda and adjacent countries?

      Jean-Pierre Bemba, a former Congolese rebel leader who is on trial for crimes against humanity and war crimes over alleged cases of murder, rape and pillage in the Central African Republic in 2002 and 2003?

      Or Ivory Coast's former President Laurent Gbagbo, who faces four charges of crimes against humanity—murder, rape and other forms of sexual violence, persecution and “other inhuman acts”—in the violence that followed disputed elections in 2010?

      None of these men are being lynched. They have just been summoned to face a trial, with all the legal rights they are accused of denying to others. And in most cases, the prosecutions have been undertaken with the support of the relevant African country.

      African countries dominate the list for two reasons. One is that more than half the world’s wars are in Africa. The other is that African countries, so vulnerable to violence, have a strong interest in establishing the rule of law, and most African lawyers and senior civil servants understand that.

      They are often thwarted by their presidents and prime ministers, who belong to a very exclusive club. African leaders are as prone as any other interest group to try to exempt themselves from rules that hold them legally responsible for their actions.

      The ICC has also made mistakes, like bringing cases against senior politicians when there was no realistic chance of getting the evidence needed for a conviction (like President Uhuru Kenyatta in Kenya).

      But even if it fails much of the time, the ICC is a worthwhile enterprise. It is part of a long-term effort to build a world that is ruled by law, not by force, even if that goal is still a century in the future—and in the meantime, it occasionally gives the victims justice right here in the present.

      Comments

      13 Comments

      P.Peto

      Jun 17, 2015 at 3:44pm

      Gwynne Dyer says:"ICC is a worthwhile enterprise." So anybody who disagrees with him will be severely thumbed down by his readership. Ergo, dissenting opinions are not welcomed so don't bother stating them. Not a very healthy or tolerant attitude for his readership to have, pretty narrow minded, in fact.
      So here it goes: The ICC is NOT a worthwhile enterprise because it is not all inclusive, because it does not prosecute powerful people, because it's a tool of western imperialism, because it's politicized, because it's run by white supremacist racists, because there are no checks and balances on it's judgements and because it has no means of enforcement.
      It would be worthwhile if it had prosecuted G.W. Bush, Tony Blair, D. Rumsfeld, D. Cheney , the House of Saud and a whole bunch of other warmongers!

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      I Chandler

      Jun 17, 2015 at 6:20pm

      DYER: "shouldn’t Bush be indicted as a war criminal for illegally invading Iraq? No, actually"

      Of course not. As Dyer explained - Bush was simply the leader of the reigning superpower - & thus got into trouble because:
      1)"the more powerful a country is, the more wars it fights and the more people it loses..."
      2)" More power doesn’t give you greater security; it just gets you into more trouble."

      But a war of aggression as the supreme international crime, differing from other war crimes only in that it contains the accumulated evil of the whole.

      Maybe Bush was simply led astray by some neoconservatives ( Project for the New American Century -created in 1997 and closed in 2006) that tried to make the US into a global hegemon.

      John Mearsheimer is a neorealist that thinks it's bad idea to try to become a global hegemon - the globe is too big and with big oceans: https://youtu.be/CXov7MkgPB4?t=1135

      If Bush should be indicted as a war criminal , so should Putin for illegally invading Crimea and invading Ukraine again and again: https://www.youtube.com/watch?v=wd1_o9pyehE&feature=youtu.be&t=389

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      McRetso

      Jun 17, 2015 at 7:15pm

      Peto

      You're being downvoted because you're wrong. Plain and simple. We're under no obligation to spare your feelings, and downvotes are not censorship.

      Bush, Blair, and the House of Saud, no matter how deserving of justice, cannot be prosecuted by the ICC because of the way international organizations work. You have to sign up to them before the rules apply to you, or you have to commit your crimes in a country that did sign up.

      So Bush, whose country refused to sign up, and who committed his crimes in Iraq (also a non-signatory) doesn't get indicted. Iraq should have signed on to the Rome Statute.

      Another issue: local courts have jurisdiction over the ICC. The ICC is a court of last resort; it can only indict people if the local authorities are unwilling or unable to do so.

      If anything, the court is good for Africa. It is primarily (though by no means exclusively) African countries where crimes against humanity occur, and African states often lack the institutions to punish those who commit them. The ICC gives Africans a second chance to bring their oppressors to justice.

      Also remember how I said Iraq should have signed the Rome Statute? Well, if a US president launches a war of aggression against an African country that is a party to the Rome statute, and no American court can/wants to bring charges against him/her, then the ICC will have the power to indict them. So the court can potentially protect African countries from Western aggression if they use it properly.

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      P.Peto

      Jun 17, 2015 at 10:28pm

      McReto: What are you-a lawyer?
      OPINION: "1.a belief or judgment that rests on grounds insufficient to produce complete certainty." 2."a personal view, attitude, or appraisal."
      Opinions are not matters of fact;so they are niether "right or wrong".
      Gwynne Dyer is a professional political commentator or more correctly a paid opinion maker and his opinions are widely followed and respected but that doesn't mean his opinions are right and that contrary or differing opinions are wrong. Thumbs simply indicate whether the thumber likes or dislikes,agrees or disagrees with the stated opinion. My experience here has shown when I concur with Dyer, which is infrequent, I get a lot of down thumbs and when I agree or support Dyer I get a lot of up thumbs. That clearly demonstrates what I claim, that thumbing is an expression of fidelity or fealty, of Dyer's readership, to their lord's opinion. It's nothing more than a cheap popularity contest between his readers and other commentators! My feelings are irrelevent and thumbers do not have the power to censor me.
      As for the legitamacy of the ICC what's the point if it's not universally applied or accepted. The fact that the most powerful state in the world has chosen to reject it's authority [ not signed on] makes makes it irrelevant and useless. These are merely my opinions however judgemental and dogmatic they may appear you. By all means, use your thumbs, according to your own whims. They are not expressions of great importance to me. As you all know I take a dim view of thumbing better to express yourself by writing something thoughtful. Just an opinion.

      Uncle Jack

      Jun 17, 2015 at 11:09pm

      To P. Peto,

      I occasionally read your very long and flamboyant letters, full of pathos, but with little logic or substance.

      Which makes me wonder, do you have any job, or academic background??

      Just asking.

      BTW. Remember to give a "thumb down"!

      Greg G.

      Jun 18, 2015 at 1:05am

      Should fellas like Bush, or Kissinger, have been indicted for war crimes, and should still be? Of course they should. I've personally protested against both of them in person at their speaking engagements carrying a sign calling for exactly that. Would I like to see Madeline Albright in prison, and should Francois Mitterrand probably have met his end at the end of a hangman's noose along with Paul Barril over their complicity in the Rwandan Genocide? Sure. Because they escaped, or continue to escape justice, does that mean we should never punish the leaders and perpetrators of war crimes at all, going back to pre-Second World War days? Of course not, that's just dumb.

      Just because not every country is party to the Rome Statute, 123 countries are, and we have to start out somewhere, no? Because China, Iraq, Israel, Libya, Qatar, the United States, and Yemen voted against, does that mean we should just shut the whole thing down? That's pretty regressive thinking, and not exactly rational; sorry if that offends anyone, but it really is. The saying about not throwing the baby out with the bathwater could seriously have been invented to describe this very situation.

      As the ICC is used more and more over the years, non-signatories will be shamed into signing, or will eventually become international pariahs, no matter how powerful they are militarily or economically. In today's world, even a USA or a China cannot survive without trade with other countries, and the day will come that any country that doesn't join the system emerging of which the ICC is only one component will be shut out and devastated until they get on board. And I think that is a very good thing.

      Ernesto

      Jun 18, 2015 at 8:58am

      P. Peto - I wonder how many years it will take before you are able to look back and cringe at the ridiculous sounding and over-simplistic things you wrote. It will happen.

      P.Peto

      Jun 18, 2015 at 11:00am

      Boys, have you ever heard the expression: "the flak is heaviest over the target"? I bomb Gwynne Dyer and get your flak: belittling taunts or disparaging and derogatory remarks. Fire away , none of you have hit the mark.
      My compliments to Greg G; your point is well taken but a very much doubt you'll ever get the Big Bad boys to ever sign up and be held to account.
      Uncle Jack, I never use my thumb and I won't be baited by your insults [also to Ernesto]. I trust you are all enjoying my contributions. While I take your flak, I. Chandler continues to bomb Dyer's opinions with great effect.

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      WilliamR

      Jun 18, 2015 at 10:05pm

      @P.Peto

      That's an interesting expression, and one I hadn't heard before. Utter nonsense of course, since the flak will be heaviest wherever the enemy has installed the largest number of AA guns, regardless of whether your target (or any target) happens to be located there or not.

      If you want to test this proposition, post the most offensive, inflammatory, factually untrue rubbish you can get past the moderators. You'll get a flood of thumbs down votes which shouldn't be interpreted as meaning your material is correct. It just means a number of people don't agree with what you've written.

      W.

      Come to think of it, you may already be in the middle of carrying out this very experiment. Sorry if I've messed up your data.

      S H

      Jun 18, 2015 at 10:21pm

      Climate change will prosecute us fairly.