INTERVIEW: ICC counsel criticizes Sudan handling of Bashir indictment

By Wasil Ali

August 3, 2008 (WASHINGTON) – The Sudanese government is mishandling the International Criminal Court (ICC) case against Sudanese president Omar Hassan Al-Bashir, one of the registered counsels at the ICC told Sudan Tribune in an interview today.

The French-Libyan born counsel Dr. Hadi Shalluf has followed the Darfur case in the ICC very closely. He was appointed by its ICC Judges in August 2006 to represent and protect the general interests of the defense in the Darfur case during the proceedings on the preservation of evidence and protection of witnesses.

Shalluf filed a series of motions to challenge the jurisdiction of the Court and the admissibility of the Darfur case at the ICC that were eventually rejected by the judges.

His stance on the admissibility of the Darfur case ties with that of Khartoum but Shalluf says his reasoning is “purely legal”.

He called on the Sudanese government to deal rationally with the ICC and stressed that Khartoum’s options are becoming limited as time passes. He advised Sudan to accept a special regional court that would include Sudanese judges.

Shalluf also warned that Al-Bashir faces real prospects of arrest if he travels abroad to any country.

With regards of suspending Al-Bashir’s indictment by the UN Security Council (UNSC) Shalluf emphasized that the Rome Statute does not allow for a partial deferral and that any such resolution would cover the other two suspects Ahmed Haroun, state minister for humanitarian affairs, and militia commander Ali Mohamed Ali Abdel-Rahman, also know as Ali Kushayb.

The Paris based lawyer also lashed out at the Arab NGO’s that rallied behind Al-Bashir without taking into account the views of the Darfur victims.

Shalluf also asserted that a reaction of most Arab columnists and journalists in supporting the Sudanese head of state is a natural outcome for lack of free speech in the Arab world.

Below is the text of the interview:

– Did you change your position on the jurisdiction of the ICC over the Darfur case?

Shalluf: No not at all. But I agree with the ICC Statute which says that any challenge to its jurisdiction should be made in court before the judges not on television or the media.

– But Sudan argues that it is not a party to the Rome Statute and therefore not obligated to stand before the ICC judges and make such a challenge?

Shalluf: Yes but now the ICC is a reality for Sudan. Once the Pre-Trial chamber issues an arrest warrant against Al-Bashir he is subject to apprehension anywhere in the world. All the suspects including Haroun and Kushayb must dispute jurisdiction at the ICC. Sudan can and must utilize legal channels to resolve this matter.

– Who has the right to file a challenge to the admissibility?

Shalluf: The ICC statue makes it clear that suspects must first be held in custody before that can happen. The ICC judges made this rule clear in response to a motion I filed in November 2006. Once they make an appearance in court the judges will decide. Even if they issue an unfavorable decision to Sudan it can always be appealed.

– The response of the Sudanese government seems to focus mainly on attacking the ICC’s prosecutor Luis Moreno-Ocampo and saying he is not morally in a position to accuse Al-Bashir. What is your opinion on this?

Shalluf: I have asked Sudan before to deal with the ICC legally and not just politically. Directing insults at Ocampo is not a good thing and above all not right. Ocampo is doing his job in accordance with the Rome Statute. He has no personal interest in indicting Al-Bashir other than fulfilling his duties. At the end of the day it will be the judges to decide on the prosecutor’s application after reviewing the evidence submitted. It is not a personal conflict between Al-Bashir and Ocampo.

– But Sudan said the ICC prosecutor was politically motivated in his decision to prosecute Al-Bashir?

Shalluf: In any part of the world prosecutors sometimes have their own motives. But in this case we are talking about a judicial institution and not about Ocampo. He has evidence that collected from different sources. The judges will have the final say on this.

– The Sudanese government also said that the ICC as whole is a political tool in the hands of Western countries?

Shalluf: The ICC has been formed through an international treaty signed by a large number of countries. Personally I have said before that the ICC must bring to justice those who committed crimes in Iraq, Somalia and other countries. The prosecutor must seek to investigate them and let the judges decide. There are crimes committed in Zimbabwe, Palestinian territories and South Africa.

– But with the exception of South Africa none of these countries are parties to the ICC and there is no UNSC resolution in this regard?

Shalluf: That what the prosecutor has said; that Iraq is not party to the ICC and that crimes committed in Venezuela occurred before the entry of the Rome Statute into force. However these issues should be left to the judges. I just think that the prosecutor should make the move to investigate and let the pre-trial chambers address the issue of admissibility to create a legal precedent.

– There has been a lot of talk about the immunity that Al-Bashir enjoys as a sitting head of state under the Vienna convention which means he can’t be brought to court. How sound is this argument legally?

Shalluf: First of all we must differentiate between the Vienna convention and the Rome Statute so that there is no mix-up. There are many politicians and lawyers who can’t get this right. The Vienna convention is on the political immunity for diplomats and embassies. The Rome Statute however nullified the immunity of individuals accused of war crimes, crimes against humanity and genocide. So any head of state or official who is suspected of committing these crimes may be subject to the jurisdiction of the ICC. This rule came into force in 2002 when the ICC was founded. Anything prior to that is not included.

A Paris court for example ruled that even though the Libyan leader Muammar Gadhafi is behind the bombing of a French airline with six other people, he cannot be prosecuted because he enjoys immunity under Vienna convention. But this occurred in 1989. Now the French and European laws ratified the Rome Statute so it does not exclude heads of state from judicial proceedings.

– But Sudan is not party to the Rome Statute so why should Al-Bashir be stripped from his immunity?

Shalluf: Sudan signed the Rome Statute and took part in formulating the treaty but did not ratify the treaty. Again this is a legal matter. There are views that say Sudan is a member of the UN and therefore has an obligation to comply with resolution 1593 referring Darfur case to the ICC. I have said in the past that the resolution is weakened by the fact that three of the permanent UNSC members are not party to the ICC. All these arguments however should be made in court.

– There are many Arab and Sudanese writers who say that Al-Bashir’s indictment is aimed at breaking up Sudan and part of a Western conspiracy against the Islamic countries in general?

Shalluf: We must all agree that there were crimes committed in Darfur from all parties to the conflict whether the rebels or the government. The courts have the right to look into them. I offered a proposal for a special court before as an alternative to the ICC. There are human right violations in Darfur. The violations which include killings and displacement of people must be investigated. No one can say that this is a Western conspiracy. Of course politically there will be some countries who may be willing take advantage of these conflicts such as Chad, US, UK or even China. This is to be expected in these types of conflicts. But a lawyer is concerned with justice only. We believe there is a case warranting judicial intervention. If Sudan accepts the ICC then that would be great. Otherwise we can establish a special regional court which would be Sudan’s best choice.

– The Arab League Secretary General Amr Musa carried a proposal to conduct national proceedings in Sudan or a regional one. But Sudan refused the latter and said they will only accept local courts. How do you evaluate Musa’s plan?

Shalluf: I personally think that things have taken a different turn with regards to Darfur and the international criminal system. There can be no internal proceedings and it will not be acceptable anyways. As a starter it will not guarantee the rights of the victims. I am not questioning the integrity of Sudanese judiciary but things have changed today. Sudan could have moved to prosecute war criminals a long time ago.

Sudan has two choices; either to deal with the ICC or accept a special tribunal with support of world countries in the UN. These are the only choices before Sudan, Arabs and Africans on this issue.

– What about the concept of complementarity included in the Rome Statute?

Shalluf: Yes it states that international judiciary is complimentary to the local one on the condition that it is genuine. If the local judiciary is unable or unwilling to move then the ICC must intervene. In the case of the Congolese militia Leader Thomas Lubanga he was handed over by his government because local courts are unable to prosecute him. However this doesn’t apply to Sudan because its judiciary did not take measures to investigate Darfur war crimes.

– From a technical standpoint how can Sudan invoke the complimentary concept?

Shalluf: It is too late. The head of Sudan is now indicted and the choices are limited to what I mentioned before. This is beyond the Sudanese judiciary.

– Sudan said they will request the opinion of the International Court of Justice (ICJ) on the authority of the UN Security Council (UNSC) to refer cases to the International Criminal Court.

Shalluf: The UNSC has wide-range authority. The Rome Statute which was created in the UN conferred upon the UNSC the authority to refer cases to the ICC. I think the ICJ will advise Sudan that the UNSC did not err in its resolution despite the flaws of having non-State parties sitting in the council.

– What if Sudan withdraws from the UN as some of their officials have alluded? Would that help Sudan avoid ICC?

Shalluf: Sudan can do that of course. However this will not make any difference with regards to the ICC jurisdiction. This will only create a ripple effect because Sudan would have effectively revoked their membership in many UN organizations as well as international treaties. I don’t think Sudan will go that far. Sudan is not Switzerland or Taiwan. They need the UN not the other way round.

– There is talk however about suspending Al-Bashir’s indictment by the UNSC?

Shalluf: The UNSC is referred the case to the ICC. They can pull the case from the ICC and revoke resolution 1593. However the ICC prosecutor can still proceed on the Darfur case on his own if someone files a complaint before him with supporting evidence. As far as deferral it is not true that they can suspend the case against Al-Bashir and not the others. Even such a request from the UNSC is not binding to the ICC judges for one simple reason; the judiciary should be independent from political bodies. The ICC is not part of the UN and cannot be influenced by politics.

– So invoking Article 16 would apply to the entire Darfur case?

Shalluf: Exactly. For example Haroun can request the testimony of Al-Bashir so he has to appear before the ICC judges. So suspension can in no way be a partial one to exclude certain individuals.

– Do you think there is a realistic chance for the UNSC to suspend or revoke resolution 1593 as you mentioned?

Shalluf: I doubt it. There is a great deal of misunderstanding when it comes to Arab and African politicians on the ICC and the UNSC authority. I think the Libyan and South African ambassadors at the UN either did not read or understand the Rome Statute. The UNSC cannot make decisions without a vote and some countries have veto power which means that the ICC could continue working the Darfur case. Even if the UNSC adopt a resolution on suspension, the judges can reject it.

– Do you think Sudan president is realistically at risk of being arrested if he leaves the country?

Shalluf: If an arrest warrant is indeed issued then it will be transmitted through the ICC registry to all Rome Statute parties and the INTERPOL. Even for non-state parties they may have criminal exchange laws with an ICC member so they may receive a request to extradite Al-Bashir. Members of the INTERPOL are also legally obligated to arrest Al-Bashir.

– But we heard a South African official questioning who will dare to arrest Al-Bashir?

Shalluf: This is a political talk. The South African court will be the ones to request the arrest of Al-Bashir and not the South African government. We have seen this happen before. It is not up to the government but to its judiciary.

– This sounds somewhat hypothetical. We are talking about a head of state here whose arrest by another country could have serious implications?

Shalluf: I think these countries will ask that Al-Bashir does not visit them. EU countries for example are not allowed to meet someone indicted by the ICC of war crimes. Even the UN Secretary General has been advised not to meet with the Sudanese president. It will be embarrassing for any country to receive someone accused of war crimes. He will effectively be a prisoner in his own country. The judicial process has started and cannot be stopped now.

– Do you think it will be better for Al-Bashir to step down in light of these developments?

Shalluf: That is not for me to say. This is an internal political matter for the Sudanese people to decide. I am just a lawyer. If I have any advice to Sudan it is for them to accept an international tribunal for Darfur. It will make Sudan avoid the ICC row.

– The ICC prosecutor mentioned in an interview with the TIME magazine that a Sudanese envoy met with him and asked if Haroun was to be extradited to the ICC and states that he received orders from people above him whether Ocampo would investigate that. In other words they appear to want guarantees that indictments won’t reach officials up in the food chain.

Shalluf: If Sudan reaches that level of talk then they are completely ignorant of the law. This is regrettable. Like I said before Haroun can request the testimony of Al-Bashir so no one is immune from prosecution. Moreover the victims have the right to push for the prosecution of individuals if they possess enough evidence. If what Ocampo said it is true it shows that Sudan did not study the International Criminal law. Handing Haroun and Kushayb will not protect other Sudanese officials. This is naive thinking.

– How do you assess the reactions of the AU which comprise the bulk of the ICC members? Some African countries said the ICC is white man justice.

Shalluf: Then why did they join the court? This question should be directed to counties which are parties to the Rome Statute. This is hollow political talk that is not based on evidence. Some African leaders are concerned that they may be future targets of the ICC. They have their own hidden skeletons they want to keep in the closet. In my opinion it will be the African nations that will arrest Al-Bashir and send him to The Hague.

– What about the Arab League?

Shalluf: They are driven by emotions. The Arab League chief thinks he can resolve the matter by going to the Egyptian Justice and Interior ministries. Arabs claim that this ICC thing is brought about by the West. This is not true. The Rome Statute is an international treaty and Jordan, an Arab country, is one of its signatories.

– But even some NGO’s such as the Arab Lawyers syndicate and the Arab Committee for Human rights condemned the ICC move. They even offered a legal team to defend Al-Bashir.

Shalluf: I have no objection to having a legal team defend Al-Bashir. However the Arab Lawyers syndicate is a political body serving regimes which are providing them with money. They are not out to stand for human rights and victims of oppression. They could have taken a stance in support of Darfur victims in addition to defending Al-Bashir if they are truly genuine. That is my opinion which is why I did not join them. The Arab Committee for Human rights is also a political body. They are not lawyers.

– What about the Arab writers and columnists who also deplored the ICC?

Shalluf: Those people write what the government wants them to write. There is no freedom of speech in the Arab world or even respect for law. It doesn’t surprise me.

– Some of these writers argue that Bush and Olmert must be prosecuted before they agree to bringing Al-Bashir to court?

Shalluf: This s rubbish. There is a case in court. We cannot say in any case that let us resolve another unrelated one before we can proceed with the one at hand.

– Do you think the anti-ICC sentiment in the Arab world is caused by ignorance on what is going on in Darfur?

Shalluf: Of course there is no freedom of speech in the Arab world so they will only show what the government wants people to know. For example if Egypt’s relation with Sudan worsens they will publish all the info on Darfur to embarrass Khartoum. If they are friends with Sudan Egyptian media will withhold Darfur news. Unfortunately this is how it works in this part of the world.

(ST)