Tag: rome statute

Lawyers forward Chief Judge’s case to International Criminal Court

A group  of lawyers have forward a case concerning the government’s arrest and detention of Criminal Court Chief Judge Abdulla Mohamed’s by military forces has been forwarded to the International Criminal Court (ICC).

The Maldives became a member of the ICC after acceding to the Rome Statute late last year.

According to the Rome Statute, “the jurisdiction of the [ICC] shall be limited to the most serious crimes of concern to the international community as a whole”, notably genocide, crimes against humanity, war crimes and crimes of aggression. The ICC does not deal with small cases, even if the victims may be in the hundreds.”

The case was forwarded by a group of lawyers contesting the conditions of the judge’s arrest and detention at a Maldives National Defence Force (MNDF) training facility on Girifushi.

Maumoon Hameed, a member of the legal team, said the case was submitted “as the continued detention of Judge Mohamed is in clear violation of the International Convention on the Protection of all Persons against Enforced Disappearance.”

Hameed told local media that ICC prosecutor, Luis Moreno-Occampo, would investigate the matter. Minivan News is currently waiting for a response from the ICC.

The judge was arrested by MNDF forces upon police request after he attempted to block his own police summons in the High Court. Allegations against him include corruption, political bias and poor professional conduct, such as requiring underage victims of sexual abuse to re-enact their experiences during court hearings.

MNDF did not release details of the judge’s whereabouts for 48 hours following his arrest, prompting the opposition to define the act as “enforced disappearance”.

The military has not complied with High and Supreme court orders to release the judge. Officials from the military and police forces were today questioned on the matter by Parliament’s 241 Committee for safety and security, and further hearings are pending.

Opposition parties have claimed the judge’s detention as a ‘crime against humanity’, leading to a string of increasingly violence protests since last week. Over 40 people have been arrested in the past four days, and several individuals have been sent to the hospital.

Opposition Dhivehi Quamee Party (DQP) President Ibrahim Shareef termed the arrest an inhumane “kidnapping”, while Vice President Dr Mohamed Waheed surprised the govenrment by expressing shame over the action calling it “the first possible violation since the dawn of democracy in our country”.

The European Union (EU) also expressed concern over the judge’s arrest in a statement in which it encouraged all parties to “act in accordance with these [democratic] principles and to refrain from inflammatory language or other action which could incite hatred.”

Acting on these and other concerns, Human Rights Commission of Maldives (HRCM) last weekend visited the judge on Girifushi and reported that he was in good health and conditions, drawing criticism from the opposition for allegedly “backing down” from its duties.

Meanwhile, the government has maintained that the judge’s arrest was lawful and that invoking the term ‘crime against humanity’ is only a political strategy.

“The government of Maldives is taking appropriate action in extraordinary circumstances involving allegations of serious corruption and gross misconduct by a senior judge. Public statements seeking to define his detention as a human rights issue are part of the web of protection which surrounds Judge Abdulla Mohamed,” said a government legal source.

Citing the ICC’s Rome Statute, the legal source has noted that “detention of a person can only be construed as a ‘crime against humanity’ if that detention is committed by a State as part of a widespread systematic attack on a civilian population, and if that detention is followed by the refusal to acknowledge the deprivation of freedom, and or to give information on the fate or whereabouts of that person with the intention of removing the person from the protection of the law for a prolonged period of time.

“The detention of Judge Abdulla Mohamed is not part of a systematic attack on a civilian population and the government has acknowledged his detention to both his family and the public at large,” the source stated.

The source described the allegations against the Chief Judge as “of serious concern to the Maldivian government and community” and claimed to hold evidence of “gross misconduct” against the Judge.

In particular, the government claims that the judge exercised “undue influence” over at least one member of the Civil Court to prompt a ruling against the Judicial Services Commission’s (JSC) investigation of the Judge last year.

Observing that the High and Supreme courts remained silent during the affair, the government accused the judge of “tacit acceptance of a ploy to prevent the JSC from exercising is powers under the constitution.”

Furthermore, by accepting the Civil Court’s ruling the JSC indicated its own subscription to biased input, the source claimed.

Speaking today to Minivan News, in his own capacity, opposition Progressive Party of the Maldives (PPM) member Abdul Rasheed Nafiz endorsed the gesture of sending the case to the ICC.

“Right now, this is a legal argument. The opposition says the military cannot arrest judges, and the President says he has the authority as commander-in-chief. The Supreme Court tried to resolve the matter but it has had some problems. We need a mediator, and now it’s time for the international community to get involved”, he said.

Among the criteria for the ICC to take on a case in the Maldives is doubtful willingness and capacity of the country’s own judiciary to handle the case in question.

Speaking to Minivan News in September, President’s Press Secretary Mohamed Zuhair said it was important for the Maldives to have access to an international judiciary

“This is a big step for a country whose previous leaders have been accused of human rights violations. I believe their cases would be fairly addressed in the ICC,” he said, while an ICC official hoped membership would help the Maldives proceed with judicial reform.

Towards that end, the Foreign Ministry has requested an international legal delegation from the United Nations’ Human Rights Commission to help resolve the current impasse in the nation’s judicial system.

Meanwhile, former President’s Member on the Judicial Services Commission (JSC), Aishath Velezinee, today told Minivan News “I would like it if the ICC were to accept this. Not because of Abdulla Mohamed, but because it will mean they will have to look into why he was taken.”

Velezinee has accused the opposition of subverting the judiciary for political purposes, with the aim of protecting their supporters from prosecution and retaining control over the judges as previously held by the former Ministry of Justice.

“It was a coup,” she told Minivan News today. “Now they are asking the Supreme Court to investigate – the same Supreme Court which has asked the authorities to investigate people who criticise the judiciary. No single person has criticised the judiciary more than me – and I say this because I have all the evidence, and all the papers.”

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Maldives a proud part of ICC: Ghafoor

The Maldivian government has said it supports the mandates and standards of human rights and legal processes held by the International Criminal Court (ICC) in conjunction with the United Nations Charter.

Gender violence and social unrest were among the issues raised during the session.

Permanent Representative Ghafoor Mohamed addressed the Tenth Session of the Assembly of State Parties to the ICC last week. The session began in New York City on December 12 and will conclude on December 21.

Reaffirming the Maldives’ commitment to the Rome Statue, Ghafoor said the country is “proud to be among the group of countries who have committed themselves to combat impunity, in respect of international law and to provide justice to those victims who have often been forgotten in the labyrinths of diplomacy.

“We strongly believe that the rule of law in societies, at all levels is a crucial ingredient to the realization of socio economic objectives, and a reinforcement of core democratic principles. We are a strong supporter of the International Criminal Court and its conformity with the United Nations Charter in strengthening the rule of law and the respect for human rights”, he stated.

Reflecting on the protests and revolutions unfolding in the Middle East and North Africa, Ghafoor pushed for governments to carefully consider their peoples’ voices and visions for their states.

The Maldives demonstrated its commitment to democracy during the Arab Spring and recently over the Syrian revolution.

The Maldives was one of the first three countries to recognise Libya’s National Transitional Council (NTC) as Libya’s sole legitimate representative. In a letter sent to chief Mustafa Abdul Jalil, expressed the President’s hope that Libya would “emerge as a free and democratic country, in which fundamental human rights can be enjoyed by all.”

Earlier this month, the Maldives exercised its powers as a member of the United Nations’ Human Rights Council to help convene a UN Emergency Session on human rights in Syria. The Maldives supports increased foreign intervention regarding the state crackdown on civilian protestors.

However, Maldivian police have lately extended controversial blogger Ismail ‘Hilath’ Rasheed’s detention over his role in a peaceful silent protest for religious tolerance without charges.

On the other hand, religious Adhaalath party has agreed to meet with ruling Maldivian Democratic Party (MDP) to discuss issues surrounding the upcoming protest to defend Islam, scheduled for December 23. MDP is meanwhile planning to hold a counter-rally on the same day.

Gender crimes were also raised as an issue of high importance.

“Gender crimes are one of most heinous forms of crimes against humanity and it is imperative that the Court continues its case law and jurisprudential work,” Ghafoor said.

A related topic was recently raised in the Maldives when UN Human Rights High Commissioner Navi Pillay called for a moratorium on flogging of women as a punishment for extra-marital intercourse. The punishment is primarily administered to females in the Maldives, where paternity tests are unavailable.

Minister of Foreign Affairs Ahmed Naseem rejected Pillay’s view on the grounds that Islamic law is inarguable.

This is the first time the Maldives has participated in an Assembly of State Parties to the ICC since acceding to the Rome Statue earlier this year. Other new members include the Philippines, Cape Verde and Vanuatu.

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Rome Statute activated in Maldives

The Rome Statute of the International Criminal Court (ICC) became active in the Maldives today, following a required 60-day period after depositing the Instrument of Ratification.

The Maldives recently became the 118th state member of the International Criminal Court following a favorable vote in Parliament. It is the third South Asian country to join the ICC after Bangladesh and Afghanistan.

By adopting the Rome Statute, experts say, the Maldives has benefitted its own legal system by expanding training opportunities. It has also taken a step towards greater transparency on the international level.

Based in the Hague in the Netherlands, the ICC is an independent, permanent tribunal established in 2002 to prosecute individuals accused of genocide, war crimes and crimes against humanity. After 2017, it will exercise jurisdiction over the crime of aggression.

The Maldives is expected to participate in the 10th Assembly of State for the Rome Statute, scheduled in New York between 12-21 December.

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ICC membership expected to reform Maldivian judicial system

The Maldives has become the 118th country to adopt the Rome Statute of the International Criminal Court (ICC), the world’s first and only permanent international court with jurisdiction over crimes against humanity, crimes of aggression, genocide and war crimes.

The Maldives is the third state in South Asia to become an ICC member, following Bangladesh and Afghanistan. It is the ninth in the south asian region alongside Cambodia, Japan, Republic of Korea, Mongolia, the Philippines and Timor-Leste; plans to ratify the statute are advancing in Malaysia and Nepal.

Asia has been slower than other regions in adopting the ICC regulations, allegedly because they maintain the death penalty which is prohibited by the ICC. William R. Pace, Convenor of the Coalition for the International Criminal Court, said the Maldives’ decision to accede to the Rome Statue was a significant step for the region.

“It is vital that the momentum towards increasing respect for the rule of law and accountability for those responsible for the most serious crimes is seized by other states in the Asia-Pacific region, many of whom are close to joining the ICC,” Pace said in a press release. “Joining the Court represents a strong deterrent effect that will contribute toward the prevention of gross human rights violations in the Asia-Pacific region and to the global fight against impunity.”

Acceding to ICC regulations as defined by the Rome Statute has been a long process for the Maldivian government. In 2003, the Maldives took steps to reject its judicial authority.

Wikileaks cables published on 1 September 2011 cite the Maldivian government’s intent to “never turn over a US national to the International Criminal Court (ICC). The Maldivian government would not sign the ICC treaty and would not respect its claim to universal jurisdiction.” Other cables indicate that then president Maumoon Abdul Gayoom was seeking approval for a visit with then US President George W. Bush, allegedly to improve his chances of re-election.

Speaking to Minivan News today, the President’s Press Secretary Mohamed Zuhair said ratification of the ICC statute highlighted the different values of the current administration.

“For us, it’s transparency that is at the top of our priorities. So right now, our highest priority is to improve the judicial system of this country.”

The ICC covers major crimes which are widespread, systemic and of concern to the international community. The ICC does not deal with small cases, even if the victims may be in the hundreds.

Among the criteria for the ICC to take on a case in the Maldives is doubtful willingness and capacity of the country’s own judiciary to handle the case in question.

Zuhair said it was important for Maldivians to have access to an international judicial system. “Individuals who feel they have a complaint, even against a leader, could refer the complaint to the Maldivian judicial system or to the ICC. This is a big step for a country whose previous leaders have been accused of human rights violations. I believe their cases would be fairly addressed in the ICC,” he said.

Evelyn Balais-Serrano, Asia-Pacific Coordinator for the ICC’s advocacy NGO Coalition for the International Criminal Court (CICC) told Minivan News that ratification would support domestic legal reform, and that heads of state would face new levels of accountability.

“The ICC only deals with the big fish. In the past only the small fish may have been sacrificed to show a semblance of justice – but the ICC targets the highest level of responsibility: the head of state, generals, kings,” she said previously.

The Debate

In October 2010, the debate to join the ICC created sparks in Parliament.

MDP MPs condemned the “unlawful and authoritarian” practices of the previous government. Group Leader “Reeko” Moosa Manik referred to 2009 legislation protecting former presidents who he considered “the worst torturers in the country’s history,” and said the purpose of the international criminal court was to “arrest torturers like Maumoon [Abdul Gayoom], people like Ilyas Ibrahim [brother-in-law of the former president] who stole state property and funds, and Attorney Generals like Hassan Saeed who tried to hide it.”

MPs from opposition Dhivehi Rayyithunge Party-People’s Alliance (DRP-PA) said MDP MPs were overlooking the fact that Gayoom had never been reprimanded in a court of law, and accused the current administration of disregarding rules of law. MP Dr Abdulla Mausoom accused the MDP government of formulating policies only to “benefit certain people”, which he argued could be “considered a crime in international courts.”

The question of religion was also inflammatory. DRP MP Dr Afrashim Ali said convention should not be signed if it could lead to “the construction of temples here under the name of religious freedom.” Other MPs pointed out that several Muslim countries had not joined the ICC, and the MPs were concerned that ratification would “shatter Islamic principles” and encourage gay rights.

Shari’a experts in ICC signatories and Muslim countries Afghanistan, Jordan and Malaysia have not found conflict between the Rome Statute and Sharia.

On 14 June this year, Parliament voted almost unanimously to sign the Rome Statute of the ICC.

The Effects

Speaking to Minivan News today, Balais-Serrano pointed out that ratification of the Rome Statute was well-timed.

“As a chair of the SAARC summit, Maldives will have quite an influence on south asian countries attending this year’s event,” she said. “It will certainly be constructive in reviewing human rights, a key point we plan to address at the summit.”

The South Asian Association for Regional Cooperation (SAARC) summit is scheduled for Addu City in mid-November this year.

Balais-Serrano also pointed out that by ratifying the Rome Statute, governments are committing to adapt current domestic legislation to meet international standards. She said ICC members could receive “training of local judges and prosecutors and other officials responsible for lawmaking and implementation”, and hoped the Maldives would forward with judicial reform.

“The judicial system in Maldives can benefit from the rules and procedures by which the ICC operates, for example, in the nomination and election of judges, in the protection of witnesses and victims and in ensuring due process,” said Balais-Serrano.

She said that ICC membership would expand Maldivian court procedures. “One of the motivations of joining the ICC is to let go of a commitment to include the domestic judicial system alone. Now, Maldivians can also refer to the ICC provisions and regulations. This is a timely event for the Maldives to review domestic law while making the ICC a reference point.”

As an ICC member, the Maldives will be able to send judges and lawyers abroad for internships and exchange programs in member countries. Balais-Serrano said that all member countries are obliged to send employees to the ICC to learn and assist with proceedings.

International liability

ICC membership could affect international relations. The Maldives recently made news headlines by supporting the Sri Lankan government, which is facing war crimes allegations by international human rights groups. A report from UN Secretary General Ban Ki-Moon has raised the likelihood of an investigation by the Human Rights Commission.

A Relationship Agreement between the ICC and the United Nations calls the UN “potentially the most important partner of the ICC on various levels,” and suggests that investigations by the UN are based on the same human rights standards put forth by the ICC.

“The Maldives cannot do anything if the ICC decides to investigate and put into trial the perpetrators of crimes in Sri Lanka,” said Balais-Serrano. “If suspected criminals from Sri Lanka seek refuge in the territory of the Maldives, as a state party to the ICC, the government is obliged to cooperate to the Court by arresting  the criminals.”

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Adopting Rome Statute benefits domestic legal systems, says Coalition for the International Criminal Court

The Maldives’ decision to accept the jurisdiction of the International Criminal Court (ICC) will provide many opportunities to improve the country’s domestic legal system but is a significant commitment, according to Evelyn Balais-Serrano, Asia-Pacific Coordinator for the ICC’s advocacy NGO the Coalition for the International Criminal Court (CICC).

Parliament voted almost unanimously on June 14 that the Maldives sign the Rome Statute of the ICC, the founding treaty of the first permanent international court capable of trying perpetrators of genocide, crimes against humanity, and war crimes.

In October 2010, MPs clashed over signing the Rome Statute, using the debate to condemn the “unlawful and authoritarian” practices of the previous government, while MPs of the opposition Dhivehi Rayyithunge Party-People’s Alliance (DRP-PA) coalition MPs accused the current administration of disregarding rule of law and negating parliamentary oversight.

President Mohamed Nasheed had sent the matter to parliament for ratification. Following the hour-long debate, during which time  DRP MP and recently-dismissed Judicial Services Commission member Dr Afrashim Ali insisted that the convention should not be signed if it could lead to “the construction of temples here under the name of religious freedom,” a motion by DRP MP Dr Abdulla Mausoom to send the matter to committee was passed 61-4 in favour.

Last week, parliament voted 61-3 in favour of signing the treaty, on the recommendation of the national security committee.

“A major benefit of [ratifying] the treaty is the opportunity for judges and lawyers to participate in exchange and internship programs,” Balais-Serrano told Minivan News, explaining that the domestic legal system of many countries had benefited through exposure to the ICC.

Didactic benefits aside, the decision has ramifications for Maldivian law. Implementing the treaty requires a national commitment to adjust domestic law where it conflicts with the Rome Statute, “or to find ways for it to align,” Balais-Serrano told Minivan News.

One possible reason for the slow uptake of the Rome Statute in Asia is its position on capital punishment – the death penalty – which is legal in many countries in the region but is not present in the ICC treaty, “as are laws concerning immunity, protecting monarchs and members of the royal or ruling family [from prosecution].”

Ratifying the treaty is a pledge to make those revisions, Balais-Serrano said, and to make sure such laws were present whenever crimes under the ICC’s jurisdiction were committed.

She noted that the CICC’s experience was that despite initial concerns in some countries regarding clashes between the legal obligations of ICC signatories and Islamic Sharia law – as in the case of the death penalty – Sharia experts in ICC signatories Afghanistan, Jordon and Malaysia had found no conflict between the Rome Statute and Sharia.

Balais-Serrano acknowledged “frustrations” on behalf of people and governments over misconceptions of what crimes fell under the ICC’s jurisdiction.

“For example, in Bangkok there is a debate between the red and yellow shirts about how to use the ICC to get rid of each other,” she noted.

‘The ICC only covers major crimes, such as genocide, war crimes, crimes against humanity and crimes of aggression. Crimes must be widespread, systemic and of concern to the international community. The ICC does not deal with small cases, even if the victims may be in the hundreds.

“Also present is the concept of command responsibility – the ICC only deals with the big fish. In the past only the small fish may have been sacrificed to show a semblance of justice – but the ICC targets the highest level of responsibility: the head of state, generals, kings.”

Another benchmark for whether the ICC would consider taking on a case was willingness and capacity on behalf of a country’s own judiciary to handle such contentious cases.

Currently the ICC is investigating situations in the Democratic Republic of the Congo, Uganda, Central African Republic, Darfur, Sudan, Kenya and Libya.

Sri Lanka was an emerging candidate, she noted, following the UN’s claim that videos of alleged insurgents being executed by government soldiers were genuine and evidence of war crimes.

“That was how Dafur started,” Balais-Serrano said, explaining that outside an invitation from the Sri Lankan government, the UN’s launching an international investigation would require a mandate from either the UN Security Council, or the UN Human Rights Council.

“China will block [an investigation] in the UN Security Council, so the emphasis is on the Human Rights Council [of which the Maldives is a member],” Balais-Serrano said.

Foreign Minister Ahmed Naseem has previously described the UN’s report into the closing days of Sri Lanka’s civil war as “singularly counterproductive.”

Ratifying the Rome Statute would also have diplomatic ramifications, Balais-Serrano agreed.

“Becoming a member of the ICC can increase a country’s prestige and reputation, through its commitment to human rights,” she said.

“But it also adds pressure to a government to fulfill its obligations as a signatory, and not pay only lip service to human rights and its other international commitments.”

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