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.
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).
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.
A sea and thousands of concerns
The name of the “Caspian Sea” has been recently heard more than any other time! In the meantime, there are rumors, ambiguities and, of course, concerns that need to be described in the Convention on the Legal Status of the Caspian Sea which was signed on August 12 in the port city of Aktau, Kazakhstan.
Accordingly, there are some important points that calls for attention and scrutiny. In general, over the past 21 years, several meetings have been held on the Caspian Sea and how the coastal countries should be benefited from its resources. In these meetings, legal, security, economic, and even cultural cooperation were discussed among the littoral countries.
After more than two decades of fraught diplomatic efforts, the five littoral Caspian nations – Russia, Iran, Kazakhstan, Azerbaijan and Turkmenistan – agreed upon a legal framework for sharing the world’s largest inland body of water. However, as long as all disputes, especially legal conflicts between the participating countries aren’t resolved, it is impossible to talk about the establishment and continuity of sustainable relations among these countries. It should be noted that over the past two decades, one of the main tasks of our country’s Ministry of Foreign Affairs has been to direct this case and determine its legal convention.
1) Prolongation of the finalizing process of a case is not undesirable if it’s the result of scrutiny in the legal and technical parts. This is the case with determining the legal dimensions of the Caspian Sea Convention. After the collapse of the Soviet Union, we witnessed a kind of transformation in the Caspian legal regime. The Soviet Union was divided into 15 countries.
Consequently, Russia, Kazakhstan, Azerbaijan and Turkmenistan each became a separate and independent variable in this equation. Undoubtedly, the transformation of a two-variable legal equation into a “legal-security” multivariable equation is not considered a simple transformation. Therefore, we should understand the complexities of the Caspian case.
The countries of Iran, Azerbaijan, Turkmenistan, Russia and Kazakhstan each have specific demands regarding their share of the Caspian Sea resources. Making a balance between these demands and subsequently realizing them is very difficult and complicated. What is important in this context is to strengthen the “principle of cooperation” among the Caspian coastal nations, and to define joint maritime projects among all neighboring countries to protect the Caspian Sea.
Another point to be taken into consideration here is about the draft of the Caspian Sea Legal Convention and the role of the Foreign Ministry in this process. As mentioned above, the Caspian Sea Case has been open for more than two decades and has not yet come to a complete conclusion. Negotiations held among the Caspian Sea littoral states should distract our attention from the realities.
It should be noted that the establishment of the Caspian Sea Legal Convention is the basis for solving the existing disagreements over the Caspian Sea and defining concrete and conclusive cooperation among the littoral countries. A remarkable part of such security and economic cooperation will be the result of this convention.
In other words, the Convention on the Legal Status of the Caspian Sea can’t and shouldn’t be taken as in the same level with “defining the security and economic cooperation” between the coastal countries. Undoubtedly, the definition of economic, security and even cultural cooperation between the coastal countries depends on the settlement of legal disputes between these countries and setting of a common legal convention.
2) Speaking of controversial issues such as Iran’s 50 percent share of the Caspian Sea, which couldn’t be fulfilled even before the collapse of the Soviet Union, and the creation of false subjectivities in the country, by those who claim to be the representatives of our people, has no result except for the weakening of national security.
his is while the Iranian president, Hassan Rouhani, had emphasized that “we should recognize there are more important issues that need to be addressed.”
This is a legal process, and one of the main tasks of our country’s diplomacy and foreign policy system is to manage and direct this complex process. Obviously, under the current circumstances, expressing biased and targeted words will only lead to the loss of focus of our country’s diplomatic apparatus on this critical case.
Finally, it should be noted that good commitments were made during the meeting among the countries involved in this case. Today, the ministers of foreign affairs of the Caspian littoral states, unanimously emphasize on the necessity of the absence of foreign forces in this region, which is a positive trend. Moreover, from the statements made by the foreign ministers of the Caspian littoral states, we understand that their cooperation on resolving existing disputes has become faster than before.
However, until all legal conflicts between the Caspian littoral countries are not totally resolved and the Convention of the Caspian Sea Law Convention is not perfectly codified, we can’t think of this legal and strategic case as closed and settled. Therefore, in this critical situation, all efforts should be made so that Iran can benefit most.
It is emphasized here that even one singled legal disagreement should not remain among the players involved in the case. Meanwhile, the mechanism for resolving disputes should be carefully decided. Therefore, while welcoming the settlement of the existing disagreements over the Caspian Sea, there shouldn’t be any haste in completing this process.
First published in our partner Tehran Times
Iran has to be very careful in future negotiations on Caspian Sea
Professor of political science says although the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states, Iran has to be very careful in future negotiations.
Five Caspian Sea littoral states signed Caspian Sea Treaty on August 12, 2018 in Kazakhstan. The agreement has created many debates about the share of Iran in Iran.
To know more about the issue we reached out to Nader Entessar Professor Emeritus of Political Science in University of South Alabama.
There are many debates on the legal regime of the Caspian Sea. Some argue that according to the treaties of 1921 and 1940 between Iran and the USSR, the share of Iran equals to 50% of this sea. Is Iran’s share stipulated in those treaties?
No. Neither the 1921 nor the 1940 treaties specify that Iran and the USSR each share 50 per cent ownership of the Caspian Sea. Both of these treaties talk in general terms about the resources of the Caspian Sea being the used by Iran and the USSR without stipulating the exact ownership of the seabed, boundary delimitation, and other related issues. We have to remember that these two treaties were signed well before the United Nations Convention on the Law of the Sea (UNCLOS) was drafted and came into force. Therefore, the 1921 and 1940 treaties could not have foreseen the complex issues of maritime boundaries that were discussed in UNCLOS.
Based on the international law, what is the legal status of the Caspian Sea after the collapse of the USSR and the sharing of the Caspian Sea by the five littoral states? Some bring about the idea of 20% sharing? Is there any base for this idea in the international law?
The answer to this question depends on if the Caspian is defined as a “sea” or a “lake.” If one classifies the Caspian as a lake, then according to international law its resources should be divided equally among the five riparian states. However, if the Caspian is designated as a sea, then the five littoral states should draw lines extending from their shores to the midway point with littoral neighbors. This explains why for many years Iran had insisted on defining the Caspian as a lake. However, it appears that the five littoral states agreed in Aktau that the Caspian is a sea. That is why some observers have argued that in the final delimitation agreement, Iran will end up getting not only about 13 per cent of the Caspian but also the saltiest and deepest part of it.
Is the share of each of the littoral states from the Caspian Sea defined in the convention signed on August 12 in Kazakhstan?
No, the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states. In so far as Iran is concerned, this issue will have to be determined in a future agreement with Azerbaijan and Turkmenistan. Iran has to be very careful in future negotiations with its two neighbors because the resulting boundary agreement will determine Iran’s final Caspian share.
What is the main achievement of the Aktau Convention, signed on August 12 in Kazakhstan, in regards to the legal regime and status of the Caspian Sea?
Although some reports have referred to the Caspian Sea Convention as a “landmark agreement,” I don’t view this agreement as such. Its main achievement was that after more than 20 years of contentious diplomatic efforts, the five littoral states of the Caspian Sea finally agreed on a legal framework for sharing the resources of this significant body of water. There are some clear and specific agreements in the Convention. For example, all five littoral states agreed to 15 miles of sovereign waters, plus a further 10 nautical miles of fishing area. But the wording of the Convention remains vague in many parts of the document, thus delaying divisive decisions that have to be made in future negotiations.
First published in our partner MNA
Fifty Years of NPT: Weaknesses over the course
NPT is a landmark treaty that lies at the heart of non-proliferation regime (NPR). In July 2018, Fiftieth anniversary of the NPT has been celebrated. Theoretically, NPT is committed to the goal of arms control and aims to accomplish the nuclear disarmament. For this purpose, the NPT member states are devoted to pursue three key objectives of the treaty: prevent horizontal proliferation, state’s right to use nuclear energy for peaceful objectives, and nuclear disarmament. However practically due to shifting US’ alliances, major power politics, and growing arms race, the fifty years of NPT has only delivered “Distress, Conflict and discrimination”.
Loopholes and weaknesses exist in NPT which are being misused by Nuclear Weapon States (NWS) and Non-Nuclear Weapons States (NNWS) of the treaty. Despite the NPT’s presence for 50 years and an expansion in its membership, atomic weapons have not been wiped out from the world. All the NWS aim to maintain their nuclear weapon state status due to their security or strategic concerns. Despite the dialogues of arms control, all major and smaller nuclear weapon states are committed to maintaining credible deterrence and strategic balance. Such aspirations of NWS demonstrate that major powers party to the arms control and disarmament treaty are merely the silent spectators to the existing weakened structure of the so called universal treaty of 191 member states due to their own vested interests.
The fifty years of NPT have reaffirmed that the universal mechanism to fight with nuclear proliferation and achieving the objective of disarmament is not adequate for two reasons: first, the international mechanism of non-proliferation has failed to deal with the few potential proliferators; secondly, strategic and security concerns of NWS and NNWS has undermined the Articles I, II, IV, VI and X of the treaty. In spite of the fact that until the 1980s worldwide measures to counteract atomic multiplication were generally more effective, yet in the subsequent years the NPT was not much successful to counter the aspirants of nuclear capability such as North Korea, Iran, Libya and Syria. Due to inadequate mechanism and weaknesses of the treaty, now nine states possess nuclear weapon capability and approximately 30 states have the technical ability to acquire it that is viewed as serious threat to the NPT.
Despite the potentials of non-proliferation, since 1968 with participation of 191 states and various agreements and talks, an efficient and effective regime stresses on pin pointing the weaknesses and restructuring, re-evaluation and reformation of the treaty structure. The key setback to the NPT is that the articles of the treaty are not fairly adopted by the member states due to which the regime has failed to address the significant objectives of horizontal proliferation, arms control and disarmament. For instance under Article I of the treaty, transfer of nuclear material and technology by NWS to NNWS is prohibited. But treaty has failed to address the transfer of fissile material and nuclear technology from one NWS to another NWS. Such dynamic have increased the insecurities of NNWS and resultantly forces them to take extreme measures to ensure their security .e.g. North Korea. Simultaneously, despite being the member of the treaty, the US has been providing nuclear related technology to India since 1990s under the umbrella of various bilateral treaties or agreements. India-US nuclear agreement and granting of NSG waiver to India is viewed as an intentional measure to help India increase its military buildup to carry forward strategic ambitions of the US in the Asian region.
Furthermore, the US agreement with India for joint production and development of military related technology such as mini UAVs , distinctive kits for C130 and designing/ development of jet engine technology has played central role in speedy development of India’s nuclear program. Such development is not only the violation of NPT by the US but also compels the NNWS to acquire nuclear capability to address their security concerns. Right of all states to use nuclear energy for peaceful objectives played key role as bargaining chip and is viewed as major loophole in the treaty due to technical similarities in peaceful use of nuclear technology and technology for military purposes. North Korea Withdrew from the NPT in 2003.Article X of the treaty provides the right to member states to withdraw from the treaty if their sovereignty is on stake. However not accepting the states’ right to withdraw from the treaty is denial of their right of self defence and violation of treaty. Therefore, discriminatory attitude, special treatment and country specific treatment pose serious question mark on the implementation and standards of NPR.It demonstrates that the regime is just an instrument of major powers to fulfill their strategic and foreign policy objectives.
The current doctrines of NWS comprise of elements warfare, which shows hegemonic mindsets of major powers and explains their reluctance to give up on their “nuclear assets”. These factors have posed negative impact on the process of non-proliferation and disarmament. Therefore it can be inferred that the above mentioned scenarios have played central role in keeping Pakistan away from joining the NPR. If NPT states want to attract non-NPT states for the membership of regime then the current member states will have to pursue non-discriminatory approach towards non-proliferation themselves.
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