Position Paper
Portfolio: Judge Geoffrey A. Henderson, Trinidad and Tobago
Committee: International Criminal Court
Delegate Name: Firdaus Mohandas
School: Step by Step, Noida
The two cases that the International Criminal Court faces are of tremendous legal complexity as
well as immense humanitarian importance, and serve as serious tests of the International
Criminal Court. Omar Hassan al-Bashir and Bashar al-Assad have been accused of crimes of
significant gravity, entailing massive human rights violations, and therefore, it is absolutely
critical that the International Criminal Court delivers a well-considered, legally-sound judgement
taking into account the numerous factors that are of relevance.
Both cases have certain features in common. For example, both involve leaders allegedly
pursuing violent means to crush opposition of different sorts. While the crimes that al-Bashir has
been accused of appear to be more racially and ethnically motivated, Assad’s seem to be more
overtly political. The international support for Assad is considerably stronger, with countries
such as Russia and Iran strongly opposing the Court’s trial. However, this is not to say that the
Court has been assisted a great deal in the investigation of al-Bashir, as African nations have
been unwilling to cooperate with the body in the process of his arrest.
The Court has been criticized, fairly or not, of being “heavily politicized”, a “tool of Western
imperialism”, and of “leaning towards the prosecution.” While it is worth noting that all the
Court’s proceedings will be under sharp international scrutiny, it is key that this is no way affects
the accused’s right to a fair trial or the victims’ rights to justice.
One major issue which arises, in my opinion, is that of Individual Criminal Responsibility. As
the court noted in the judgement pursuant to The Prosecutor v. Mathieu Ngudjolo, it is important
to establish not only that the crimes took place, but also the specific role played by the accused,
under Article 25 of the Rome Statute. That is to say, the prosecution has the burden of proving
that the two separate defendants either committed, ordered, solicited, induced, abetted, or in any
other way contributed to the commission of their respective crimes.
Under Article 68(3) of the Statute, victims have a right to active participation, a concept unique
to the ICC. While, as I have said before, this goes a long way in the dissipation of the culture of
impunity, it does create a special challenge for the judges: to balance the rights of the accused
with the rights of these victims. It also means that the judges must make a special effort to create
an atmosphere in which the victim feels the court wants to hear what the victim has to say, one of
empowerment amidst all the pressure.
This court also has the responsibility of specifically re-enforcing the principles of Article 27 of
the Statute, regarding the Irrelevance of Official Capacity. As both the accused possess great
political power and clout, this will be especially important.
There remain several other matters of great significance that will undoubtedly affect the trials,
and both prosecution and defense will need to address these at length. Until then, I simply
reiterate the need for a trial absolutely unmarred by unconscious biases, and the need to approach
the evidence clinically, dispassionately, and objectively.