Rights of Due Process and the Post-Arab Spring: Paradigm Shift from International to Domestic Court Jurisdiction

Autor: Kichere Mwita

Originally Published at Peace and Conflict Monitor on 01/03/2012

According to the International Committee of the Red Cross, the fundamental rules of due process are derived from the Third and Fourth Geneva Conventions, the additional protocols, and customary law, which apply to anyone being detained. The rights to due process range from no conviction or no sentence unless he/she receives a fair trial containing essential judicial guarantees, including, inter alia, the impartiality of a court of law; presumption of innocence until proven guilty; means of defense; tried without undue delay; examined witnesses against him; assistance of an interpreter; judgment pronounced publicly; appeal; conviction only for the crime committed; and non-punishment more than once for the same crimes.[1]The due process rights include: rights of suspects; rights to be promptly informed of charges; legality and conditions of detentions; and impartiality.[2] The rights to due process, in a broad sense, encompass the rights of the party to be treated fairly, efficiently and effectively by the administration of justice with a view to safeguarding and to protecting the rights of individuals.[3] However, the rights to due process are somewhat commonly known to be centered on the rights to a fair trial and the rights to an effective remedy.

The Arab Spring, which began at the end of 2010, is escalating. Hence, the need to comprehend the rights to due process is essential for those countries that have already passed through this phase. That is, the countries that are now entering the post-Arab Spring era. “However, those in power are now shaking from the revolutionary movements occurring in the Arab world, and continuing to spread. These movements are aimed at a more even distribution of national wealth, as well as liberty and justice for the current generation. This is what has been happening in Tunisia, Egypt, Libya, Yemen, and Syria and Bahrain. The movements started at the end of 2010. No one knows when or where it may end”.[4]

1.1 A Fair Trial and an Effective Remedy as Key Elements in the Rights of Due Process.

The right to a fair trial encompasses the presumption of innocence; fair and public hearings; competence of the justice; the independence of the court from the executive and legislature; the manner in which the court is able to restrain from external pressure and harassment; the quality and quantity of appointed jurists to meet the code of ethics; impartiality of the court in which the jurists should not have any interests for matters brought before them; no punishment of law; equality of arms (both parties are treated equally); the rights to know accusation and examination of witnesses; and reasonable time to ensure that justice is delivered in a timely manner (justice delayed is justice denied).[5] The absence of an effective remedy can create a climate of impunity, particularly when states intentionally and constantly deny remedies.[6]

1.2 The Rights of Due Process and International Instruments

The Universal Declaration of Human Rights, for instance article 8, establishes that ‘everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law’.[7] The International Covenant on Civil and Political Rights, articles 14 and 15, establishes the rights of due process on a fair trial and rights to remedy. For instance, article 14(1) states: ‘All persons shall be equal before the courts and tribunals’.[8] In the African Charter of Human and Peoples’ Rights, article 27 of the Protocol establishes that ‘If the Court finds that there has been violation of a human or peoples’ right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.’ And article 7(1) establishes the rights to a fair trial to include rights to an appeal to competent national organs; presumption of innocence until proved guilty; the right to defence by counsel of your choice; and the right to be tried within a reasonable timeframe by an impartial court or tribunal.[9] The Organization of American States (OAS), through the American Declaration of the Rights and Duties of Man (1948), articles xxiv-xxvi, establishes the ‘rights to petition, rights to protection from arbitrary arrest, and the rights to due process of law’.[10] The Council of Europe, which adopted the convention for the Protection of Human Rights and Fundamental Freedoms (1950, with entry into force in 1953), includes articles 6 and 7, which stress the rights of due process; for instance, article 6(2) states: ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’; and article 7(2) holds that ‘no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed’.[11]

1.3 The United Nations and Skepticism Regarding the Rights of Due Process in Domestic Courts

As stated in Article 1 of the United Nations Charter, the purpose and principles of the UN include the following: 1) To maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace; 2) To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples; 3) To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction; and 4) To be a center for harmonizing the actions of nations in the attainment of these common ends.[12] In responding to some of the challenges to world peace and security, the UN established various international courts, including the International Court of Justice (ICJ) established in 1945 as one of the six principal organs of the UN, which came into force in 1946; the International Criminal Court (ICC) in 1998, which came into force in 2002; an ad hoc international Criminal Tribunal for the former Yugoslavia (ICTFY, 1993); and an ad hoc International Criminal Tribunal for Rwanda (ICTR, 1994).

The rights to due process are seen, practiced and appreciated by the parties presenting cases before the international courts. This places the challenge of the rights to due process on many domestic courts, which are mainly subject to questionable independence, questionable competence, and questionable quality and quantity of jurists. Unlike the international courts, domestic courts have many challenges regarding rights of due process. For instance, many domestic courts are not independent and are unable to handle external pressure from executive and legislature. Domestic courts in developing countries are weakened by the executives and legislatures by having provided insufficient funds to meet the demands of the administration of justice. Despite the importance of justice as a key element to peace, the budget differences between the legislature and the domestic courts reveal a clear picture of how the courts in most developing countries are undermined by these state arms – executive and legislature.

Also, many jurists of domestic courts in particular in developing countries are subject to corruption. Unlike the domestic courts, the international courts and tribunals have total independence, competence, quality and quantity of jurists, and they are able to handle external pressures from states. Unlike the domestic courts, the jurists serving in the international courts are well-scrutinized and are subjected to tests to determine high integrity. Additionally, they are well paid and they have the service tenure to the point that they are independent from external pressure. Hence, there is no summary dismissal.

1.4 The Capacity to Uphold the Rights of Due Process in International and Domestic Courts

Most domestic courts around the globe are somewhat questioned by the international community on the grounds of their capability, independence and impartiality to try the claim brought before them. This can be revealed, for instance, in the ICTR statute (1994) article 9(2)(b), which states: ‘A person who has been tried before a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal for Rwanda only if: The national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted’. The statute of the ICTFY (1993), article 10(2)(b) establishes that ‘A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if: (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted’.[13] These articles from the two ad hoc international tribunals (ICTR and ICTFY) reveal the existence of some domestic courts that are not impartial, independent or capable of delivering competent judgments.

In addition, the rights of due process are seen and practiced by the International Criminal Court (ICC). For instance, the Rome Statutes (1998) of the International Criminal Court (ICC), article 85 (2) establishes the rights to remedy (compensation), as follows: ‘Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation’.[14] This includes the rights to a fair trial, protection of witnesses and victims, and the rights to remedy. Also, regarding the rights to due process, in the statute of the International Court of Justice (ICJ), article 42 (3) establishes that ‘the agents, counsel, and advocates of parties before the court shall enjoy the privileges and immunities necessary to the independent exercise of their duties’.[15]

1.5 The Rights of Due Process and the Human Rights Instruments in Regional Organizations

The existence of international tribunals and supervisory bodies of the United Nations and regional and sub-regional organizations is due to some member States’ failure to comprehend the desirable standards set forth by human rights instruments. Hence, this has created a need for individuals, groups, non-governmental organizations and intergovernmental organizations to have recourse to these international tribunals and supervisory bodies. There are at least one hundred human rights treaties adopted by States at both international and regional levels. The increasing caseload before international and regional supervisory mechanisms is a clear indicator that individuals and victims are increasingly capable of bringing complaints against their states for violations of Human Rights.[16] This being the case, it is no doubt that the rights of due process within states are somewhat questionable. This in turn challenges the states’ apparatuses of administering justice. However, the states need to observe why there is a wave of increasing caseloads at the level of regional and international supervisory mechanisms. No justice, no peace. The states need to make reforms that comprehend the rights of due process in more practical ways than ever before. Nevertheless, most states are parties to the international human rights instruments, and they are supposed to abide them, exercise them, and put them into action.

1.6 The International Criminal Court and the Post-Arab Spring Era

Do we need an international court to try the perpetrators of grave breaches of peace from Tunisia, Egypt, Bahrain, Libya, Yemen, and Syria?

“International peace and security is in dilemma. Those in power are now shaking from the revolutionary movements occurring in the Arab world, and continuing to spread. These movements are aimed at a more even distribution of national wealth, as well as liberty and justice for the current generation. This is what has been happening in Tunisia, Egypt, Libya, Yemen, and Syria. The movements started at the end of 2010. No one knows when or where it may end. It is a matter of time”.[17]

The international community is obviously embracing the Arab Spring; however, the need to comprehend the rights of due process with a view toward punishing the perpetrators in domestic courts is not well defined or exercised. There are some perpetrators who need to be tried before the International Criminal Court, and there are others who need to be tried before their own domestic court. However, this is not very clear now; what we see is the inconsistency of the international community to uphold the law against current perpetrators of crimes against humanity in the Arab Spring. For instance, on 17 March 2011, the UN Security Council passed Resolution 1973 (the responsibility to protect civilians) with a view toward ending the violence in Libya.[18] However, horror and sorrow have befallen in the weeks and months following the implementation of Resolution 1973.

Who cares about Syria and its mass killings under president Bashar al-Assad?[19] Who cares about Yemen where its president Al-Abdullah Saleh reported signing a deal of immunity for his family from investigation and prosecution despite the mass killings of protesters?[20] Who cares about Bahrain and its government’s admissibility to torture and use excessive force against pro-democracy protesters?[21] The victims of the Arab Spring uprisings need to see the perpetrators of grave breaches of international humanitarian law and international criminal law be brought before the international courts. The rights of due process have to be exercised to a maximum capacity, and this is only possible in the international criminal courts, as opposed to domestic courts.

1.7 The post Arab Spring and a new paradigm shift: from international crimes against humanity to domestic capital crimes

Article 1 of the statute of the ICC establishes that ‘An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions’. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute’. In June 2011, the ICC issued an arrest warrant for Muammar Gaddhafi, Saif al-Islam and Abdullah al-Senussi, charged with crimes against humanity. However, Col. Muammar Gaddafi will not stand before the trial since he is dead. The two additional suspects were reportedly captured by rebels in November 2011.

However, the Chief Prosecutor of the ICC, Moreno-Ocampo was reported as saying that ‘he did not need to know that a Libyan trial would be fully fair, he simply wanted to be sure that it would not be a whitewash for Saif al-Islam, whom the ICC has indicted for crimes against humanity’.[22] He reiterated that the ICC is ready to help Libya conduct the fair trial. However, he reminded the international community that the reason why the ICC issued the arrest warrant for the culprits charged of crimes against humanity was due to the fact that Libya’s justice system was not stable.[23] This reversal implies that if Saif al-Islam and Abdullah al- Senussi are tried by Libyan domestic courts, that the domestic courts are now competent enough to investigate and prosecute the crimes of international concern, such as crimes against humanity. Hence, this will be a new paradigm shift from international law trial to domestic law trial for the most serious crimes of international concern.

The international community needs to be consistent. The perpetrators of serious violations of international concern, such as Saif al-Islam, should be investigated and prosecuted by the International Criminal Court. As another example, Egypt’s ex-President Hosni Mubarak is being charged with corruption and for ordering the killing of protesters by a domestic trial court. The charge of ordering the killing of protesters amounts to capital punishment (death penalty).[24] Here, the international criminal court has remained silent. Are capital offence charges against former leaders synonymous with charges of crimes against humanity, which are supposed to be tried before the international courts? Despite the mass killings of post-democracy protesters in Egypt, no crime against humanity has been mentioned in Egypt’s trial against Hosni Mubarak.

In June 2011, a Tunisian court sentenced the country’s ousted president, Zine el-Abidine Ben Ali, and his wife, Leila Trabelsi, to 35 years in prison and a fine of roughly $66 million after a trial in absentia for embezzlement and misuse of public funds.[25] And his sentence came after a one-day trial on corruption.[26] Internationally, despite the grave breaches of international humanitarian law and international criminal law, no crimes against humanity have been charged against Zine el-Abidine. In my view, the perpetrators of such grave breaches of international criminal law and humanitarian law, such as crimes against humanity, war crimes and other capital offences that occurred during the Arab Spring uprisings should face trial before the International Criminal Court.

It is obvious that most domestic courts have, to some extent, failed to uphold independence amid external pressure or impartiality from the executive and legislature. As stated earlier, Article 1 of the statute of the ICC establishes that ‘An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute’. One can argue either way regarding whether the perpetrators of grave crimes that constitute grave breaches of international law should stand for charges before domestic or international courts. However, the international community can establish sub-international criminal courts (sub-ICC for post-Arab Spring uprisings) and be given the mandate to investigate and prosecute these and other crimes that occurred during the Arab Spring uprisings. The domestic courts cannot uphold the caseload of investigating and prosecuting the perpetrators of crimes against humanity and systematic torture, degrading treatment, war crimes, systematic rape, and the like, which constitute grave breaches of international criminal and humanitarian law. The experience of an ad hoc ICTR (1994) and ICTFY (1993) has restored peace and security to the regime that the tribunal served. Similarly, a sub-International Criminal Court should be established to provide justice for the cases of the Arab Spring uprisings where post democracy protesters have been reported to have been killed.

Conclusión

The right to due process is enshrined by all human rights instruments, ranging from the national level, to sub-regional and regional organizations, to global organizations. However, the rights to due process in most domestic courts are questionable. This has led to an increasing caseload before the international and regional supervisory mechanisms. The current Arab Spring uprisings have accelerated the paradigm shift for domestic courts to have the capacity to investigate and to prosecute the crimes constituting international concern. This is a new paradigm shift of prosecuting serious international crimes in domestic trial courts. Are domestic courts prepared to handle such crimes? The answer is no. What the domestic courts are doing is establishing crimes of capital offence and corruption to meet the pressure of the post-democracy protesters.

However, the International Criminal Court is the most preferred supervisory mechanism to uphold the investigation and the prosecution of serious international crimes, such as crimes against humanity, systematic torture, degrading treatments, systematic killings, systematic rapes and so forth. The UN Security Council is urged to be consistently upholding the principles and purpose described by the UN Charter of maintaining international peace and security. It is called upon to establish a sub-international criminal court with the purpose of investigating and prosecuting the international crimes that have occurred as part of the Arab Spring. This sub-international criminal court has to be situated in one of the Arabic countries so as to serve its mandates of investigation and prosecution of perpetrators of serious international crimes related to the Arab Spring uprisings. The establishment of such international criminal courts/tribunals has proven successful in the maintenance of peace and security, namely in Rwanda and the former Yugoslavia. The denial of justice is the denial of the rights of due process. Let justice prevail to the victims of the Arab Spring; the international community must take action against the perpetrators of serious crimes of international concern.

Footnote:

[1]Gutman,Roy&Dworkin, Antony & Rieff, David: ‘Crimes of War: What the Public Should Know’. Revised and Updated Second Edition, Singapore 2007,p. 170

[2] Office of the United Nations High Commissioner for Human Rights. ‘The Rule of Law Tools for Post Conflict States ; Prosecution Initiative’; HR/PUB/06/4, NEW YORK AND GENEVA,2006 p.25

[3] Sepulveda, Magdalena; Banning, Theo Van & Gudmundsdottir, Gudrun D & Chamoun, Christine; Universal and Regional Human Rights Protection; Cases and Commentaries, University for Peace, First Edition, 2004 University for Peace,p.187

[4]Mwita, Kichere, The Arab Spring and the revelation that corruption is a crime against humanity, 4 October 2011, Published at Peace and Conflict Monitor, University for Peace, Costa Rica, 2011

[5] Ibid., p.187-90

[6] Ibid., p. 194

[7] Office of the United Nations High Commissioner for Human Rights; The Core International Human Rights Treaties; The United Nations , New York and Geneva, 2006, p.3.

[8]Ibid., p.29-30.

[9] Evans, Malcolm & Murray, Rachel; ‘The African Charter on Human and Peopes’ Rights’ ; The System in Practice,1986-2000. The Cambridge University Press, First Edition, Published 2002, United Kingdom, p.155

[10] Office of the United Nations High Commissioner for Human Rights: ‘A compilation of International Instruments Volume II Regional Instruments’, United Nations New York and Geneva, 1997.p.10

[11] Ibid.,p.76

[12] The United Nations Charter,1945

[13] The Statute of the International Criminal Tribunal for the Former Yugoslavia (1993). http://www1.umn.edu/humanrts/icty/statute.html.Accessed 22 November 2011

[14] The Rome Statutes (1998) of International Criminal Court (ICC) on the rights to due process at articles 22-25 and 63-69, and 85. http://untreaty.un.org/cod/icc/statute/romefra.htm . (Accessed 21 November 2011)

[15] The statute of the International Court of Justice; The rights to due to process, articles 34-38 (competence of the court) and articles 39-61 (procedural matters before the courts).http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0 .(Accessed 21 November 2011).

[16] Sepulveda, Magdalena; Banning, Theo Van & Gudmundsdottir, Gudrun D & Chamoun, Christine, op.cit.,p.194

[17] Mwita, Kichere, The Arab Spring and the revelation that corruption is a crime against humanity, 4 October 2011, Published at Peace and Conflict Monitor, University for Peace, Costa Rica, 2011.

[18]Security Council adopts resolution 1973 , http://www.unocha.org/top-stories/all-stories/libya-security-council- adopts-resolution-1973-2011

[19] NTN 24 NEWS.COM. NEWS/U.S Syrians rally outside the United Nations for an end to mass killings in the country.http://www.ntn24.com/news/news/syrians-rally-outside-united-nations-end-mass-killings-country

[20] De Young, Karen, ‘Washington Post, Published: 23 November 2011; Yemen president Saleh to step down’. Bahrain acknowledges use of torture, excessive force. http://www.washingtonpost.com/world/national-security/report-torture-excessive-force-used-in-bahrain-crackdown-but-no-iranian-links/2011/11/23/gIQAOOgtoN_story.html?hpid=z2 (Accessed 21 November 2011)

[21]Ibid.

[22]Murphy, Francois;‘Reuters, ICC Prosecutor happy for Libya to try Gadhafi’s son’, 23 November 2011. The International Criminal Court’s chief prosecutor has accepted that Muammar Gaddafi’s son Saif al-Islam will be tried in Libya, not The Hague http://www.vancouversun.com/news/prosecutor+happy+Libya+Gadhafi/5757077/story.html#ixzz1ebs6fRSZ (Accessed 24 November 2011)

[23]Jawad, Rana BBC NEWS AFRICA 22 November 2011 .Saif al-Islam Gaddafi can face trial in Libya – ICC. http://www.bbc.co.uk/news/world-africa-15831241 . Accessed 24 November 2011

[24] Simpson, John; BBC NEWS; ‘Mubarak trial: Egypt’s ex-president denies all charges, 3 August 2011, http://www.bbc.co.uk/news/world-middle-east-14382997. (Accessed 23 November 2011)

[25] David, Kirkpatrick D . Ex-Tunisian President Found Guilty, in Absentia. Published: June 20, 2011. Newyork Times http://www.nytimes.com/2011/06/21/world/middleeast/21tunisia.html. (Accessed 24 November 2011)

[26] CNN Wire Staff, Ousted Tunisian strongman convicted of corruption charges, 20 June 2011 http://articles.cnn.com/2011-06-20/world/tunisia.ben.ali_1_corruption-charges-abidine-ben-ali-tunisians?_s=PM:WORLD (Accessed 22 November 2011)

Bibliography

Chacha, Kichere, ‘The Arab Spring and the revelation that corruption is a crime against humanity’, Published at Peace and Conflict Monitor, University for Peace, Costa Rica, 04 October 2011.

CNN Wire Staff, Ousted Tunisian strongman convicted of corruption charges, 20 June 2011 http://articles.cnn.com/2011-06-20/world/tunisia.ben.ali_1_corruption-charges-abidine-ben-ali-tunisians?_s=PM:WORLD. (Accessed 22 November 2011)

David, Kirkpatrick D.Ex-Tunisian President Found Guilty, in Absentia. Published: June 20, 2011. New York Times http://www.nytimes.com/2011/06/21/world/middleeast/21tunisia.html. Accessed 24 November 2011

De Young, Karen, ‘Washington Post, Published: 23 November 2011; Yemen president Saleh to step down’. Bahrain acknowledges use of torture, excessive force. http://www.washingtonpost.com/world/national-security/report-torture-excessive-force-used-in-bahrain-crackdown-but-no-iranian-links/2011/11/23/gIQAOOgtoN_story.html?hpid=z. Accessed 21 November 2011

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Gutman, Roy&Dworkin, Antony &Rieff, David, ‘Crimes of War: What the Public Should Know’. Revised and Updated Second Edition, Singapore 2007, p. 170

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Office of the United Nations High Commissioner for Human Rights, ‘The Rule of Law Tools for Post Conflict States; Prosecution Initiative’; HR/PUB/06/4, New York and Geneva, 2006 p.25

Office of the United Nations High Commissioner for Human Rights: ‘A compilation of International Instruments Volume II Regional Instruments’, United Nations New York and Geneva, 1997.p.10

Office of the United Nations High Commissioner for Human Rights; The core International Human Rights Treaties; The United Nations , New York and Geneva, 2006, p.3.

Security Council adopts resolution 1973, http://www.unocha.org/top-stories/all-stories/libya-security-council- adopts-resolution-1973-2011. Accessed 22 November 2011

Sepulveda, Magdalena; Banning, Theo Van & Gudmundsdottir, Gudrun D & Chamoun, Christine; Universal and Regional Human Rights Protection; Cases and Commentaries, University for Peace, First Edition, University for Peace, 2004, p.187

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The Rome Statutes of International Criminal Court (ICC), 1998 on the rights to due process at articles 22-25 and 63-69, and 85. http://untreaty.un.org/cod/icc/statute/romefra.htm. Accessed 21 November 2011

The Statute of the International Criminal Court of Rwanda (CTR), 1994 http://www.un.org/ictr/statute.html. Accessed 23 November 2011

The statute of the International Court of Justice; The rights to due process, articles 34-38 (competence of the court) and articles 39-61 (procedural matters before the courts), http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0.Accessed 21 November 2011

The Statute of the International Criminal Tribunal for the Former Yugoslavia, 1993 http://www1.umn.edu/humanrts/icty/statute.html. Accessed 22 November 2011

Bio: Kichere Mwita is a current graduate student of the Masters Programme in International Law and Settlement of Disputes, United Nations Mandated University for Peace of Costa Rica