Mauritius and the International Criminal Court

By S. Modeliar

The filing of charges of genocide, crimes against humanity and war crimes against the Sudanese President, Omar al Bashir was politically commented at the last African Union meeting that was held in Kampala, Uganda. It would appear that there was almost a consensus amongst the heads of States and governments attending the meeting that the African countries will not assist in arresting and will not arrest the Sudanese President if the opportunity presents itself. Only two African countries, South Africa and Botswana have indicated that they will cooperate with the International Criminal Court (ICC) and arrest the Sudanese President. That attitude of the African continent may seriously undermine the work of the ICC in the pursuit of its mandate.

The ICC was established after protracted discussions and negotiations as a result of the great concern shown by the international community at the culture of impunity enjoyed by modern dictators and despots. These dictators and despots pose as political leaders with noble ends to serve the interest of their people. In reality they just go on a destruction rampage and inflict unimaginable atrocities on their own people so as to consolidate their political grip on power. Impunity means in simple terms the failure to bring perpetrators of crimes to justice. Impunity arises from a failure by the authorities to investigate violations of the legal norms and take appropriate measures in respect of perpetrators.

Following the Second World War the international community had to devise legal mechanisms to investigate and try the Nazi war criminals for crimes perpetrated against the Jews. The establishment of the Nuremberg Tribunal was a classical and unprecedented example of international criminal justice in the history of the modern world. More recently the United Nations established the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda to deal with crimes of genocide, crimes against humanity and war crimes as a result of massive ethnic cleansing and killings in the countries of the former Federation of Yugoslavia and Rwanda respectively. Mention should also be made of the Special Court for Sierra Leone where the former leader of Liberia Charles Taylor is being tried.

The ICC was established by virtue of what is commonly known as the Rome Statute. It took quite a long time for it to be ratified and come into force. As of August 2010, 112 countries have ratified the Statute. Many countries have not ratified the Statue and amongst them we find the United Sates. Most African countries have ratified the Statute. In fact 31 African countries, including Mauritius, have done so. Ratification of a treaty, convention or a statute carries with it certain obligations on the part of the ratifying States. It is always open to a State to express reservations on certain aspects of an international instrument. In the wake of the warrant of arrest and charges against the Sudanese President several countries have urged the Sates parties to the ICC to withdraw from the ICC in protest against allegations that the ICC targets Africa. The whole attitude towards the ICC is taking a political turn. Under the ICCC many crimes are prescribed. Once there is evidence that the crimes have been perpetrated or where investigations need to be carried out, evidence gathered, warrants of arrest to be executed, States parties to the Rome Statute have an obligation to cooperate with the Court.

The Rome Statute sets out the different forms of cooperation that the Court can request from member States. These cover investigations or prosecutions of crimes that fall within the jurisdiction of the ICC. There is an obligation to implement procedures under national law that would facilitate such cooperation. The Rome Statute enjoins States parties to enact cooperation legislation. Some countries have done so. The majority, including Mauritius, do not have such cooperation legislation. Cooperation legislation would enable a State to fully comply with requests regarding arrests, surrender of persons, and gathering of evidence, search and seizure. The African countries are not willing to comply with their obligations under the Rome Statute in arresting or help to arrest Omar al Bashir. The main argument that was put forward in support of that stand at the Kampala meeting is that the filing of charges and the issue of a warrant against the Sudanese president is an impediment to peace. This was not explained in details but it is nonetheless surprising to note that the peace process will be in jeopardy because the ICC has filed charges against the Sudanese president.

It would seem that, as at present advised, politics has the upper hand over the legal stand of the ICC. It seems strange and odd that countries that are parties to the Rome Statute are openly flouting their obligations under the Statute while remaining members of the said Statute. This is a blatant example of mixing politics and criminal justice. In a national jurisdiction such an attitude is not tolerated. Mauritius has not taken an official stand on the Omar al Bashir case. It should be noted that failure to cooperate with the ICC may involve consequences under Article 87.7 of the Statute. In the event of the failure of States to cooperate, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.

* Published in print edition on 20 August 2010

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