End of Tyrants: Universal Jurisdiction is Pandora's Box

Universal jurisdiction addresses the phenomenon of impunity or that which arises when a state fails to investigate its own human rights violations.

Amnesty International, a proponent of universal jurisdiction, avers that anyone who has committed genocide, crimes against humanity, extrajudicial executions, war crimes, torture, and forced disappearances should not be able to run to and hide in any other country, to remain free. Because these crimes fall under international law, all countries have the right to prosecute these crimes on behalf of the international community.

Opponents of universal jurisdiction such as Henry Kissinger, on the other hand, alleged in his essay “The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny” that universal jurisdiction is a breach on the equality of states in sovereignty, as proclaimed by the United Nations Charter (Chapter 1, Article 2). But let us not forget that Kissinger has been called the ‘butcher of Cambodia.’

He played a key role in a secret American bombing campaign of Cambodia to target PAVN (People’s Army of Vietnam) and Viet Cong (National Front for the Liberation of South Vietnam) units that were launching raids against South Vietnam from within Cambodia’s borders, as well as the 1970 Cambodian Incursion where the armed forces of the US and South Vietnam conducted military operations and widespread bombing of Cambodia.

The International Criminal Court (ICC), often referred to as “world court” and established in 2002, is the permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and crimes of aggression. It was formed based on the treaty Rome Statute of the International Criminal Court joined by 106 countries, of which Sudan is not a part.

With the ICC’s recent indictment of Sudanese president Omar al-Bashir of genocide, crimes against humanity, and war crimes – being the first head of state to be indicted by the ICC – Sudan has proclaimed that it will not cooperate as the ICC has no jurisdiction in Sudan.

If Khartoum, in retaliation against the arrest warrant, attacks refugees, aid workers, and peacekeeping forces, that will just be another sword on the heads of the leaders at Khartoum.

al-Bashir has been spoilt for too long – 5 years long, even more.

His defenders have been touting the fear of collapse of a supposedly ongoing peace process. With the ICC indictment stipulation on universal jurisdiction that eradicates head-of-state immunity for atrocity crimes, the peace process is said to possibly be endangered. A major negotiating ante is an offer of amnesty to al-Bashir, plus the possibility of quiet retirement in a third country.

Issue of national sovereignty aside, the doctrine of universal jurisdiction may have a basic handicap in eventually prosecuting al-Bashir. Universal jurisdiction is based on the proposition that the individuals or cases subject to it have been clearly identified.

al-Bashir can always resort to doublespeak. He can always claim that the atrocities committed by the janjaweed militia that he has armed and ordered to attack cannot be ascertained against the backdrop of ethnic clan wars (ethnic Arab attacks on ethnic Africans) and secessionist movements (the Sudanese Liberation Movement/Army or SLM/A and the Justice and Equality Movement (JEM) faction of the Sudan Liberation Movement/Army (SLM/A).

In all the legalese that will ensue from this case, al-Bashir can always contend that the conflict in Sudan’s western Darfur region has a long history of territorial dispute between nomads and pastoralists.

al-Bashir aside, the ICC has opened a can of worms. Sooner than later, the world will start openly asking about who should really be hanged for such mass slaughters as those in Iraq, Congo, even Burma.

Universal jurisdiction sends a clear message to the aspiring al-Bashirs and future Mugabes.

With the first head of state’s indictment in the ICC, the end of tyrants is nigh.

General Omar al-Bashir, President of Sudan, the first head-of-state indicted by the International Criminal Court (ICC) for genocide, war crimes, and crimes against humanity