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International Law

Al-Werfalli’s Arrest Warrant: Respect for International Criminal Law need of the hour

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On 15th August, 2017, the Pre-Trial Chamber of the International Criminal Court (ICC) headed by Presiding judge Joyce Aluoch and Judges Cuno Tarfusser and Peter Kovacs issued an arrest warrant against Mahmoud Mustafa Busayf Al-Werfalli under Article 58 (1) of the Rome Statute.

Al-Werfalli, a Libyan National born in 1978 belonging to the Al-Sahibani family of the Werfalla Tribe is a commander in the Al-Saiqa Brigade. Al-Werfalli joined the Al-Saiqa Brigade post the collapse of the Gaddafi regime and has been in the Commander’s position since at least December 2015.  Al-Saiqa Brigade is one of the numerous armed groups engaged in a non-international armed conflict in Libya since March 2011. Given the issue of warrant against Al-Werfalli, it can reasonably presumed to be amongst the most deadly as well.

Background

The United Nations Security Council on 26th February, 2011 acting under Chapter VII of the Charter of the United Nations, unanimously adopted Resolution 1970 which referred the situation in Libya since 15th February 2011 to the Prosecutor of the Court. The Resolution required all States and concerned regional and international organizations to extend co-operation with the ICC and its Prosecutor. As is well known, Libya was only the second instance of a situation being referred by the UNSC to the ICC, the first being Sudan.

On 1st August, 2017, the Prosecutor submitted an application under Article 58 for a warrant of arrest against Al-Werfalli. In requesting the Chamber to issue an arrest warrant against the said person for War Crimes under the Statute, the Prosecutor specifically cited 7 incidents taking place on or before 3rd June, 2016 to 17th July, 2017 in Benghazi and surrounding areas for which Al-Werfalli could be proceeded against. These crimes according to the Prosecutor were egregious and individual accountability for these crimes would advance the ends of peace and stability.

Opinion of the Pre-Trial Chamber

According to the Chamber, Al-Werfalli appeared to be directly responsible for the killing of 33 persons in or around Benghazi by either personally killing them or ordering their execution. The persons killed were detained and where either plain civilians or persons hors de combat.  The executions which took place in the course of seven incidents, according to the Chamber were exceptionally cruel, dehumanising and degrading. The use of these words by the Chamber reflects the magnitude of the impunity unleashed by Al-Werfalli in the intractable conflict currently underway in Libya.  The Chamber primarily relied upon Video Recordings submitted by the Prosecutor in coming to its conclusion on the need to issue arrest warrants. Shockingly, these videos were posted on social media on 23rd July 2017 and appear to have been uploaded in Benghazi. In addition to Video Records, records of witness interviews was factored as well.

Jurisdiction of the Court

The Chamber was convinced that the material produced (evidence) pertained to the time period for which the ICC was granted jurisdiction to adjudicate on the case (i.e., post 15th February, 2011). Since the Al-Saiqa Brigade was involved in the non-international armed conflict ever since the days of the revolution against the Gaddafi regime, the Chamber had no hesitation in concluding that the alleged crimes are directly and clearly linked with the situation that triggered the jurisdiction of the Court through the Security Council referral.

In addition, the Chamber concluded that there are reasonable grounds to believe that the Al-Saiqa Brigade had a hierarchical structure, with field commanders acting under the overall command of Colonel Bukhmada, along with numerous divisions and battalions. The violence perpetrated by this group was organized and systematic and had risen above the level of isolated and sporadic acts of violence. Given this evidence, the Chamber concluded that there are reasonable grounds to believe that Al-Werfalli’s acts constituted war crimes committed in the context of an armed conflict not of an international character. The fact that Al-Werfalli personally committed some of these murders bolsters the finding that he bears individual criminal responsibility as a direct perpetrator under Article 25 (3) (a) of the Rome Statute.

Importantly, the Chamber also mentioned that the issue of arrest warrant is necessary to prevent Al-Werfalli from further commission of these crimes.  The posting of the dastardly videos on social media satisfied the chamber that Al-Werfalli was unlikely to co-operate with a summons to appear and hence only the issuance of a warrant of arrest would serve the necessary purpose. The finding of the Chamber was based on the statutory standard applicable at this particular stage of the proceedings, namely “reasonable grounds to believe” as required under Article 58 (1) (a).

Conclusion

With the public issue of the arrest warrant, the Chamber has directed the Registrar to prepare a request for co-operation from Member States seeking the arrest and surrender of Mr. Al-Werfalli.  With the PTC issuing the arrest warrant, ICC Prosecutor Fatou Bensouda issued an appeal to the international community to co-operate and assist Libya in ensuring the arrest and surrender of Al-Werfalli to the ICC without delay. A request to this regard was made, importantly, to the UNSC as well.  While the importance of timely and effective co-operation in the enforcement of warrants of arrest cannot be understated, the ball is now in the court of the international community to honour its role in the fight against impunity. Will the international community wake up to Al-Werfalli’s arrest warrant? The execution of the warrant would be a milestone in international criminal justice.

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International Law

Will Israel Be Expelled from U.N.?

Eric Zuesse

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The conditions of membership in the U.N. are specified in the U.N. Charter. Specifically, “Articles 5 and 6 of the Charter of the United Nations deal respectively with suspension of rights and privileges of membership, and with expulsion from the United Nations.” But the operative part is Article 6, which reads:

“A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.”

Israel certainly qualifies, but the United States Government, which is controlled by the anti-Shia and anti-Iran alliance between Israel’s Government providing the anti-Iran lobbyists and propagandists, and the Saudi Government providing the anti-Iran bribe-money, won’t allow that. Consequently, no matter how violative of the U.N. Charter Israel is, it cannot be expelled.

The United States Government likewise is routinely violating the U.N. Charter and cannot be expelled, because this very Government is on the U.N.’s own Security Council as one of the five permanent members: it would veto its own expulsion.

Consequently, a fatal flaw in the current U.N. Charter is that no vote by the U.N. General Assembly can expel a permanent member of the U.N. Security Council. Nor can they expel any member of the General Assembly that’s backed by one or more members of the permanent Security Council. Until this situation is changed and a stated percentage of the votes from the General Assembly can expel a member from the U.N. General Assembly, there can be no international accountability applied against a member of the U.N. Security Council permanent five nations; and the U.S. Government, being a member of that, will continue to be allowed to do whatever its Saudi and Israeli masters want it to do — thereby protecting both Israel and Saudi Arabia themselves, and giving each of those two masters virtually as much freedom-of-action as the U.S. has; the U.S. Government’s masters buy impunity, indirectly, from their protector.

This is not a world of international law; it is a world of international force — basically a world of conquest and submission (and subversion can be part of that), which mocks democracy internationally (and maybe even domestically), and therefore effectively corrupts and prevents democracy within all nations that the controlling masters in Saudi Arabia and in Israel demand.

The most fatal failure of the U.N. Charter is thus its prohibiting any amendment that one of the five permanent Security Council members opposes.

The issue of what the conditions would be for amending the U.N. Charter was debated while the U.N. Charter was being drawn up in 1945, but nothing effective was agreed to, and so the U.N’s PR on the matter states only that “the question of future amendments to the Charter received much attention and finally resulted in an agreed solution.” They don’t say what that “solution” was, but there have been no controversial amendments made to the Charter, during its 73 years, so whatever it might have been was almost totally ineffective. A web-search for “U.N. Charter” plus “proposed amendment” produces no major “proposed amendment” but does, near the top, show what that (obviously failed) “agreed solution” (which the U.N. tries to hide) was; and it is:

“This concession took the form of Articles 108 and 109 concerning Charter review procedures. While Article 108 describes the required steps for making specific amendments, Article 109 introduces the option of a review conference outside of the usual General Assembly (GA) meetings with the purpose of a comprehensive “review” of the Charter. Both these avenues for making changes to the UN Charter include the criteria of two-thirds of the UN member states voting for and ratifying a proposed amendment. However, in addition, “all the permanent members of the Security Council” must also ratify before the amendment goes into force. This unanimous concurrence of the P5

[the five permanent members] is the biggest challenge to adopting any amendment to the UN Charter.”

In other words: The U.N. Charter’s colossal (and thus-far fatal) failure was in its including the 5-member permanent Security Council’s veto-provision to apply even to any proposed amendment to the Charter. Only an amendment which all five permanent members support can pass. Here is such an amendment. No matter how much of the rest of the world want a particular change to be made, it can’t be done unless all five of the permanent members of the Security Council will accept it. This is the harmful dictatorial power that the five permanents were granted, but it can be eliminated without eliminating the Security Council itself (as will be discussed later here).

Consequently: In order to boot Israel or any other international rogue-nation out of the U.N., an amendment would first be needed, which would apply a degree of accountability to each member of the U.N. permanent Security Council, by stripping the provision that inappropriately applies their veto-power even over the consideration of any proposed amendment. Obviously: amending the Charter should be a matter for consideration only by the General Assembly — without any veto-power being held by any one nation. Amendment isn’t regular U.N. action: it concerns the Charter itself.

The biggest difference between a religious Scripture and a democratic constitution (such as the U.N. Charter was intended to be for the entire world) is that whereas the former (Scripture) includes no provision for its being amended, the latter (a democratic constitution) does — or else it instead is actually a religious Scripture, something to be taken only on faith, no democracy at all, nothing suitable for the Age of Science, and thus for a future of democracy. This faith-basis being the actual epistemological status of the U.N. Charter — unless and until its amendment-section becomes itself amended to what it needs to be — that Charter is a religious Scripture, and the U.N. is more a religion than a democracy of any kind, so long as there exists any nation that can veto any proposed change to the founding document. Though intended to be the emerging democratic constitution for the future world, the existing U.N. Charter is instead just a type of religion, and this is its Scripture. (Though, as noted, uncontroversial amendments may be considered in it; so, the U.N. isn’t fully a religious institution.)

Consequently, to address these problems, I propose that the members of the U.N. Security Council that wish to establish through the U.N. a democracy and transform the U.N. so as to abandon its current status as being a religion, push, at the U.N., relentlessly, for a measure to unlock the U.N. Charter — to enable it finally to be significantly amended and allow a two-thirds vote of the General Assembly to pass into international law as an Amendment to the emerging global Constitution, the no longer religion, but instead henceforth the democracy, of an unlocked Charter of the United Nations — thereby causing the existing Scripture to be henceforth a Constitution.

Unless and until this (the introduction of the General Assembly’s exclusive ability to amend the Charter) is done, there can be no progress, only continued regress to international dictatorship and a World War III, and so in the direction of even more global dictatorship — this time likely ending in global extermination (precisely what the U.N. was intended to avoid).

Any member of the Security Council who would oppose removing that provision — the veto-power’s extending even to any proposed amendment to the Charter — would be clearly an international pariah-Government and enemy of democracy, which all the rest of the world could then boycott and penalize outside the U.N. until that pariah-nation becomes defeated economically and thus effectively becomes coerced by economic means to become a decent member-state in the international community.

This is an existential issue for the future of a livable planet. A basic condition for progress is the elimination, from the Charter, of the clause:

“including all the permanent members of the Security Council.”

That phrase must be removed both from Article 108 and from Article 109, Paragraph 2, both of which say:

“108. Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two-thirds of the members of the General Assembly and ratified in accordance with their respective

[individual national] constitutional processes by two-thirds of the Members of the United Nations, including all the permanent members of the Security Council.”

“109:2. Any alteration of the present Charter recommended by a two-thirds vote of the conference shall take effect when ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations including all the permanent members of the Security Council.”

The five permanent members of the U.N. Security Council are: China, France, Russia, UK, and U.S. U.S. would try to block removal of that phrase “including all the permanent members of the Security Council.” On 14 May 2018, Russia’s Sputnik News bannered “UK Has no Plans to Move Embassy to Jerusalem, Disagrees With US on Issue – May”, and this indicates that the U.S. well might be the only member that would fight to block democratization of the U.N. — to unlock the Charter for all U.N. members.

The precipitating event for this call for correcting the Charter would be the virtually unanimous repugnance of the entire world other than the U.S., regarding Israel’s string of brazen in-your-face violations of the Charter and of much of international law. Taking advantage of this intense global outrage — plus of the many outrageous actions by the U.S. Government itself — provides a rare opportunity to make the long-delayed but essential reform of the U.N., as follows:

America is the only member, of the five permanent members of the Security Council, that is so under the boot of Israel and of the Sauds. America is controlled by its own aristocracy, which are heavily interlocked with those of Israel and especially of Saudi Arabia and its other vassals, such as UAE but more broadly including the Gulf Cooperation Council of Arabic fundamentalist-Sunni royal families — and that includes a large portion of the world’s wealth. The American portion of that Imperial alliance includes control over many of the world’s largest consumer-brands, and is thus (unlike either of its masters) especially highly vulnerable to international public-image problems, such as any consumer boycotts.

There might be a way to save the world. This might be the way to a progressive future, reversing the worst of what has happened after the death of FDR (who, more than any other person, laid the groundwork for the U.N.).

Though the U.S. Government might succeed in winning the UK’s support to block democratization of the U.N., such boycotts might produce a democratic victory, if not immediately, then still within a reasonably short time, such as happened when apartheid was removed from South Africa. But this victory would be not only for the Palestinians — it would be for all peoples everywhere — a world moving in the direction of international democracy, no longer like now, in the direction of increased international dictatorship.

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International Law

Liberum Veto and the Monkey and the Pea

Dr. Andrey KORTUNOV

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To paraphrase the beginning of Tolstoy’s Anna Karenina: all effective structures are alike; each ineffective structure is ineffective in its own way. The problems with the effectiveness of the UN Security Council are in many ways unique, as unique as the body itself. In recent years, only the laziest have failed to reproach the Security Council for dragging its feet, acting irresponsibly, getting bogged down in political infighting and pointless rhetoric, and being unwilling or unable to agree on the most pressing crisis situations, from Syria and Ukraine to Palestine and Myanmar.

For all its diversity, criticism of the Security Council has two main points. The first point is related to the composition of the Council itself, and the second is connected to the procedures of its operation. The current choices for the Security Council’s permanent members, or Big Five, are questionable to say the least. China is represented, but India is absent. France and the United Kingdom are present, but Germany or the European Union as a whole are not. Neither Africa nor the Middle East nor Latin America are represented. As for procedures, the primary bone of contention is the veto enjoyed by the five permanent members, which allows any of the Big Five to block any and all decisions that fail to please them.

It is clear that the first of the two problems looks more interesting, though the second one is of more importance. The prospect of expanding the Security Council promises a great deal of diplomatic scheming, behind-the-scenes negotiations and cunning subterfuge. However, as long as the right of veto remains, and as long as the obvious differences in the viewpoints of the permanent members regarding fundamental international problems persist, extending membership of the Security Council – regardless of which countries are let in – will make very little difference. On the contrary, “democratization” under the same old procedures will only serve to further complicate the possibility of ever reaching any agreement.

It is worth remembering that the constant abuse of a similar, albeit much more democratic principle of liberum veto (free veto) in the Sejm of the Polish–Lithuanian Commonwealth eventually led to the irreversible decline and subsequent partition of one of the most powerful states in medieval Europe. Unfortunately, in recent years, the right of veto has been used more and more actively by some members of the Security Council. And it is Moscow that has set the tone. In the past two years alone, the Russian Federation has used its veto power nine times in connection with the Security Council’s examining the situation in the Middle East.

The struggle against the veto power of the permanent members of the Security Council has been going on for a very long time, without much chance of success. More than anything, it is a question of status, especially for those members whose position in world politics and whose economies are on the decline. To deprive them of their special status would be to inflict a crushing blow to national pride, to reduce them to the level of “ordinary” countries, and to forget their role in the creation of the United Nations. To be fair, let us recall that the permanent members of the Security Council are still the UN’s primary donors, accounting for more than 42 per cent of the organization’s total budget.

Besides status, however, the right of veto is also a question of practical national interests. For all their differences, each of the members of the Big Five values their sovereignty and would not like anyone, including the United Nations, to interfere in it. The Big Three of Russia, China and the United States are particularly critical of this issue. And the veto provides almost absolute guarantee of sovereignty to the select few.

So what should be done? Actually, the international community has little choice. You can do things the nice way, or you can do things the hard way. Doing things the hard way would mean commencing the procedure for a radical revision of the UN Charter so that a significant part of the Security Council’s authority would be transferred to the General Assembly. At the same time, you could get rid of the veto. In theory, such a procedure is provided for by the Charter itself: Article 109 allows for a United Nations General Conference to be held for this purpose with the support of two thirds of the members of the General Assembly and any nine members of the Security Council.

This is a rare case when the veto right of the permanent members of the Security Council is not valid. This procedure for the revision of the UN Charter has thus far never been implemented. And this is no coincidence, as it contains serious risks for the United Nations as a whole. Everyone understands that while it might be possible to take apart the complicated machine that is the UN, putting it back together again would be another thing entirely.

Doing things the nice way would mean convincing the permanent members of the Security Council of the need to take “voluntary” restrictions upon themselves in the use of the veto. There has been an active Code of Conduct campaign behind the scenes at the General Assembly for several years now that is designed to exert moral pressure on the permanent members of the UN Security Council to at least not to block those resolutions related to crimes against humanity and genocide. Strangely enough, the campaign was initiated by France, which is itself a permanent member of the Security Council. Presently, more than half of the UN’s members have joined the campaign. However, Russia, the United States and China, in a rare display of solidarity, refuse even to discuss such a possibility. The logic of the Big Three is understandable: start with voluntary restrictions and you can end up with an actual withdrawal of the veto power as a whole.

A multitude of other options exist to reduce the dependence of the practical work of the UN on the veto power of the permanent members of the Security Council. Some suggest extending the powers of the UN Secretary General. Others talk of resurrecting the now dormant Military Staff Committee. And still others believe that the solution to the problem lies in the transition to “subsidiary” peace-making by having the United Nations transfer a number of important functions in this area to “authorized” regional organizations. In any case, in order for these or other similar proposals to be implemented, a consensus is needed among the Big Five, something that is sorely lacking at present.

However, try as you might, the end will always come. The current situation in the UN Security Council should not be considered normal. It is difficult to believe that this abnormal situation can last indefinitely. In failing to resolve critical regional and global crises, the Security Council suffers serious damage to its reputation, damage that extends to the United Nations as a whole. This is not even the point; more importantly, the chronic paralysis of the Security Council reinforces and justifies the temptation to bypass the UN Security Council and sometimes circumvent the modern system of international law in general. For now, actions bypassing the Security Council are still perceived as the exception, but they could soon become the rule. For now, they are frowned upon, but soon they could become the norm.

Historical – and even everyday – experience suggests that those not willing to sacrifice a part risk losing the whole. Unfortunately, the United Nations is not at all immune to the fate of its predecessor, the League of Nations, which left the political scene quietly in the late 1930s, at the precise moment that international efforts to prevent a new world war were needed most.

To return once again to Leo Tolstoy, this time to one of his children’s fables: “A monkey was carrying two handfuls of peas. One little pea fell out. He tried to pick it up and spilled twenty. He tried to pick up the twenty and spilled them all. Then he lost his temper, scattered the peas in all directions and ran away.” The permanent members of the UN Security Council are still in the second stage – twenty peas have already been spilled. Will it reach the third stage?

First published in our partner RIAC

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International Law

Whatever Happened To Due Process In International Relations?

Rahul D. Manchanda, Esq.

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It seems that recent events across the globe have further revealed a glaring hole within the framework and structure of international relations, law, and diplomacy – the complete and total lack of Due Process.

In each and every country around the world, from the local level all the way to the federal, there exists in criminal and civil jurisprudence the concept of Due Process – a concept which has been defined as the legal requirement that the state must respect all legal rights that are owed to a person.

Due process balances the power of law of the land and protects the individual person from it.

When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.

Due process has also been frequently interpreted as limiting laws and legal proceedings so that judges, instead of legislators, may define and guarantee fundamental fairness, justice, and liberty.

Analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions, the interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically.

Due process developed from clause 39 of Magna Carta in England.

Reference to due process first appeared in a statutory rendition of clause 39 in 1354 AD: “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.”

When English and American law gradually diverged, due process was not upheld in England but became incorporated in the U.S. Constitution.

While there is no definitive list of the “required procedures” that due process requires, Judge Henry Friendly (July 3, 1903 – March 11, 1986), a prominent judge in the United States, who sat on the United States Court of Appeals for the Second Circuit from 1959 through 1974, generated a list that remains highly influential, as to both content and relative priority:

(1) An unbiased tribunal;

(2) Notice of the proposed action and the grounds asserted for it;

(3) Opportunity to present reasons why the proposed action should not be taken;

(4) The right to present evidence, including the right to call witnesses;

(5) The right to know opposing evidence;

(6) The right to cross-examine adverse witnesses;

(7) A decision based exclusively on the evidence presented;

(8) Opportunity to be represented by counsel;

(9) Requirement that the tribunal prepare a record of the evidence presented; and

(10) Requirement that the tribunal prepare written findings of fact and reasons for its decision.

The international news media, on behalf of various governmental agencies, intelligence organizations, private deep state oligarch run businesses, has been blasting from time to time, allegations and accusations leveled by one country or empire versus another, most notably by the Western NATO powers against the Eurasian ones, that of Russia, Syria, Iran, and North Korea, China and others, while the converse has not occurred at all.

This should tell us something.

Lately, the Skripal poisoning attempts, the multiple alleged Bashar Assad Syrian government chemical weapons attacks, and countless others have dominated the headlines.

Russia has been screaming from the rooftops that their greatest concern is that the USA or West will manufacture some type of false flag attack to blame it on them.

The only solution then is that both the United Nations and the International Criminal Court must be given the power, funding, and support by countries that are being victimized by false flag allegations to be empowered to put a stop to these irresponsible lobbings and accusations of criminal conduct by one set of nations versus the others.

When Due Process is absent from our nations’ courts, police departments, law enforcement agencies, then innocent people get thrown into jail in criminal cases or bankrupted in civil matters.

But when nations are not afforded Due Process in the course of international relations, terrorism breaks out, and so does the possibility of nuclear annihilation of all the worlds’ people.

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