Development of Human Rights, International Criminal Court, and Its Effects in the Al Bashir Case

In the legal order, any right does not really qualify as a right unless it is guaranteed by the legal system, therefore it is difficult to determine what international human rights law covers. International law determines the obligations of states and real/legal persons to each other in some matters. International human rights law identifies the fundamental human rights guaranteed by law and encourages the promotion and protection of the rights included in human rights. Human rights are one of the subjects in which international law regulates the rights of legal persons. From the positivist perspective of international law, human rights are directly related to the maintenance of international peace and security. In other words, concerns about the order in which states are still in the foreground. However, only purely humanitarian concerns prevented being unresponsive to "how states treat their citizens, what rights they provide, or what rights of citizens interfere within different countries". Within the legal systems, some issues are superior to others. Human rights law is one of these issues. In short, the law of human rights determines what the rights granted to everyone are and what measures should be taken for the recognition and protection of these rights.

International law may apply various legal measures and sanctions in order to ensure that the rights granted to individuals by international law are granted to all persons regardless of state sovereignty, that is, to protect human rights. The protection of human rights is achieved in two steps. The first step is the determination of the practices of states regarding human rights. The second is to exert a coercive effect on states to ensure their human rights to persons or institutions under their sovereignty. The measures are forcing states to act in accordance with human rights rules and to take deterrent measures for those who do not act accordingly. Thanks to human rights law, people, institutions, and states become responsible for the crimes they commit. “Human rights is a special area in the sense that international law regulates rights of individuals even if it is through the responsibilities of states” (Acer, Y., and İ.Baykul, (2020)).

The development of human rights has been thanks to the developments that have taken place for many long centuries. Thanks to the rising idea of humanism during the Renaissance, "human", who had been excluded for years, became the center of ideas, events, and arts. Thanks to the Reform, there was liberation from church oppression. The age of discovery was a time of showing what not to do, but thanks to that age, many ideas spread too fast to various parts of the world. The Age of Enlightenment prepared the world of ideas for the French Revolution. After the French Revolution, with the increase in the perception of the nation-state, national legal systems developed. These five events are crucial to the development of international human rights law. However, the real development in international human rights law took place after the second half of the 20th century. According to the literature review, since the second half of the 20th century, international law has brought rights and obligations to natural persons as well. World wars, genocides, and various crimes against humanity contributed to the development of international human rights law. There is no 100% agreed list of human rights, as different communities show political, religious, social, and cultural differences. However, since the main purpose of international human rights law is to ensure that certain rights are secured and popularized all over the world, it is still very important to establish a widely agreed-upon concept of human rights. The efforts of the United Nations contribute to the development of this law. After the Second World War, international institutions/ organizations were established to prevent new wars and increase social cooperation. While some of these institutions/ organizations were successful, some were not.

During the Second World War, people witnessed atrocities, genocides, and crimes against humanity all over the world. After the war, various studies had to be done to prevent such crimes from being committed again, for instance; establishing international organizations and judging criminals. First of all, in the Nuremberg Trials, Nazi war crimes/criminals were tried before the sight of all humanity. However, that was not enough to stop the crimes because it was not a permanent court. Even though the 3rd World War did not take place, civil wars and genocides took place in the Balkans and Africa. Secondly, The ad hoc courts were established to prosecute perpetrators of the war crimes in Yugoslavia and Rwanda in the1990s. After those, The rules regulating crimes enumerated in the Geneva Conventions, the Nuremberg and the Tokyo Tribunals, the Genocide Convention, and the United Nations Yugoslavia and Rwanda Tribunals became traditional. A permanent international criminal court had to be established in order to eliminate the inconveniences, uncertainties, and deterrence of the temporary courts in the prosecution of those who committed the crimes mentioned. International Criminal Court (ICC) was established in 2002 under the Rome statute. Unlike the ad hoc courts, International Criminal Court has broader jurisdiction. The ICC is centered in Hague and has 123 member states. The ICC’s main job is governing jurisdiction about crimes against humanity, war crimes, and genocide. International Criminal Court puts an end to impunity for the perpetrators of these crimes and thus contributes to the prevention of such crimes. International Criminal Court is the cornerstone of that system and provides universal jurisdiction. The jurisdiction of the International Criminal Court is complementary to the jurisdiction of national courts. The ICC ensures that states standardize their laws on war crimes and also it provides legal structure to prosecute those crimes that states fail to do. States must accept all terms of ICC when they join. However, permanent members of the United Nations Security Council (UNSC); Russia, China, and the USA are not parties, this makes the powers and influence of the court questionable. The ICC has no police force and no prison, so state parties must cooperate with it. According to Art.86 states must help to arrest suspects and bring them to the court, assist in gathering evidence and collecting fines and provide prison space. ICC statute included war crimes, crimes against humanity, and genocide, as well as the crime of aggression.

International Criminal Court focuses on “the most serious crimes of concern to the international community” rather than isolated acts. It includes systematic sexual crimes, systemic sexual harassment, rape, and forced pregnancy. It is not possible to investigate behavior before to treaty for the ICC. It cannot prosecute people under 18 years, and cannot impose the death penalty. It highlights the presumption of innocence, freedom from self-incrimination and from coercion, rights to fair trials, legal assistance, and transparency. The Statute ban claimed immunity from prosecution based on high government office and bans the defense of following the orders of superiors. The ICC can have jurisdiction over an individual only if the person is suspected of one of the crimes listed in Art.5. There must be a connection between the individual or the crime and the ICC state in Art.12(2) either the crime must have been committed on the territory of a state party or the accused must be a citizen of a state party. In Art.17, the ICC has jurisdiction over war crimes suspects if they have never been tried by their national courts or if they have been tried for show. In Art.17(2) the ICC can determine the efficiency of courts' jurisdictions. Its status can be interpreted as enforcement against noncompliance member states. The court can impose penalties on those convicted.

International law basically regulates relations between states. The main contribution of the ICC, individuals enter international law. The resulting action is the action of the individual, not the state, and it is the individual who violates international law. The ICC’s enforcement of international criminal law takes place between institutions or states and individuals. The ICC has carried out important studies in Africa. For example, Dyilo, who committed crimes during conflicts in the Democratic Republic of Congo, was sentenced to 14 years in prison. There are arrest warrants for those alleged to have committed crimes in internal conflicts in Congo, Uganda, Kenya, Mali, and Sudan. (Hurd, 2014)

When it comes to the Al Bashir case, in 2009, International Criminal Court issued the first arrest warrant on the grounds that former Sudanese President Al-Bashir had committed crimes as an “indirect perpetrator”. The second arrest warrant was issued for Bashir in 2010 and the crimes of genocide were added to the first warrant. The ICC prioritizes perpetrators of crimes that concern the international community, not states, and its aim is to end the immunity of crimes against humanity and thereby contribute to the implementation of human rights for all. Al Bashir incident is related to this feature of the ICC. Sudan hosted ethnically based armed struggles between Muslim-Arab, Christian, and non-Arabs for many years. People of these different ethnicities had been fighting each other for a long time. With the escalation of events in Darfur, the government used violence to suppress the resistance, reaching mass murders and even "ethnic cleansing" methods. UNSC decision was needed to file a lawsuit against Sudan, which did not accept the jurisdiction of the ICC, regarding the events in Darfur, because Sudan is not a party to the ICC, as it did not ratify the Rome Statute. The systematic killing of civilians by the government became a human tragedy, and the United Nations Security Council then mandated the International Criminal Court to investigate the Darfur crisis based on chapter VII of the United Nations convention and article 13(b) of the Rome statute. According to Article 13 of the Rome Statute, consent of the non-party state is required for the ICC to exercise its jurisdiction over non-party states. If the non-party state does not accept this authority, the UNSC acting in accordance with the 7th section of the United Nations Convention may exercise jurisdiction over these states, based on the situation in which the offense applied to the court prosecutor appears to have been committed. The UNSC emphasized that the Sudanese judicial system was inadequate, the government was unwilling to punish the crimes that occurred, and that those responsible should be held accountable to establish justice. The violence threatens international peace and security, violates human rights, and violates international human rights law, state officials will be responsible for violent methods used, and possible the ICC investigation will force the government to account for the international judiciary.

To begin with, the issue, of whether a state that has not ratified the Rome Statute has an obligation to implement the decisions of the ICC is controversial. There are opposing views in the literature on this subject. According to the Rome Statute, the consent of non-party states is required for the ICC to exercise its jurisdiction over non-party States. Otherwise, the ICC does not have jurisdiction over them. Sudan has no obligation to the ICC as it has not ratified the Rome Statute, but UNSC Resolutions have a binding effect on UN member states and these states have to comply with UNSC resolutions. Sudan is a member state of the United Nations. According to Art.86 of the Rome Statute requires the state's party to the convention to cooperate with the court in accordance with this convention, but it is not binding for states that do not sign the convention. Although countries that do not accept the Rome Statute consider themselves exempt from legal sanctions, international law regulates the behavior of states. In the case of Al Bashir, these regulations pave the way for crimes against humanity to be tried by the International Criminal Court, not for the violation of immunities. Art.41 states that it can impose various obligations on member states. According to Article 25 of UN part V, member states have to comply with Security Council decisions. UNSC resolution 1593 made it mandatory for Sudan to cooperate with ICC. Under Article 25(3)(a) of the Rome Statute, Al Bashir ruled that there was credible evidence that he indirectly aided in war crimes and crimes against humanity, and that he should be detained under Article 58(1)(b) of the Statute. This is not illegal for the law of international human rights.

Furthermore, International Criminal Court issued an arrest warrant for Al Bashir, but the decision was criticized for contradicting the principle of "immunity of heads of state" in international customary law. However, the main point here is no foreign court was at issue in the Bashir case, this decision was made by the ICC and the ICC is a court of an international character. Additionally, the court has the right to do that. Rather than a negative attitude towards the ICC immunity rights, the merits of this case are determined by the Rome Statute, not by common law. It is emphasized in Article 27(1) that there is no discrimination based on official power. At this stage, Sudan says that the articles are not binding, as it is not a party to the Statute. However, although Sudan did not ratify the Statute in the parliament, it signed an agreement in 2000. Sudan was in a dilemma because it has signed the founding agreement of the international court that it will not comply with the judicial power even if it is not under legal sanction. According to support, International Criminal Tribunal for the former Yugoslavia has also issued an arrest warrant for current president Milosevic. Thus, the ICC has legal force as per its founding principle and an arrest warrant is not unreasonable.

Despite the ICC's arrest warrants and the crimes he allegedly committed indirectly, Sudan did not take any action against al-Bashir, violating the principle of impunity for offenders specified in the Rome Statute. All legal grounds seem to give Sudan, a legal basis to oppose the arrest decision of an international court, which was established by an agreement that Sudan did not approve in its own parliament, but it would be more accurate to evaluate the situation in terms of international law and UN general principles. Although unlawfulness is observed in the decision of the ICC, we can not ignore that the court had sound reasons for reaching this decision. In addition, the facts that there are human rights violations and genocide in the region are undeniable. The jurisdiction of international law, which does not have a constitutional order, creates problems. It is difficult to interpret this decision of the ICC theoretically. Because the trial of a head of state is the damage to the sovereignty of that state. However, it does not make sense to criticize an international institution that fulfills its purpose, and what it has to do while fulfilling its purpose.

None of the wars that have been fought since the beginning of human history have been as bloody and cruel as the World Wars. Especially the Second World War proved to everyone that all humanity could be destroyed in the next world wars. For this reason, institutions were established to improve international cooperation and promote respect for human rights so that such wars do not happen again. The International Criminal Court plays a significant role in the protection of human rights even though it is not a Human Rights court. The International Criminal Court has contributed to Human Rights law by prosecuting those responsible for war crimes against humanity. "The Court which proves its the deterrent effect on criminals by retributive decisions made a lot of contribution to Human Rights within the context of serving justice, protecting victims and development rights." Gül, Y. (2018) It has been proven that former president Al Bashir violated human rights. If the new government delivers Al Bashir to the International Criminal Court for trial, it will contribute to the process both for the court and for the development of international human rights law.

Bibliography

the International Criminal Court's website ( https://www.icc-cpi.int/)

Acer, Y. and İ.Baykul, (2020), Ankara, Seçkin Publication, 320

Hurd,I.  2014, International Organizations Politics, Law, Practice, 284

Gül, Y. (2018) Uluslararası Bilimsel Araştırmalar Dergisi, 3. 293