France says Sudan’s cooperation with ICC a condition to defer Bashir Indictment

September 17, 2008 (NEW YORK) – The French government today called on Sudan to cooperate with the International Criminal Court (ICC) for it to consider suspending the indictment of Sudanese president Omer Hassan Al-Bashir.

The ICC’s prosecutor Luis Moreno-Ocampo filed 10 charges: three counts of genocide, five of crimes against humanity and two of murder. Judges are expected to take months to study the evidence before deciding whether to order Al-Bashir’s arrest.

Sudan and a number of regional organizations including the African Union (AU), Arab League, Non-Aligned Movement (NAM) and Organization of Islamic Conference (OIC) condemned Ocampo’s request and called on the UN Security Council (UNSC) resolution deferring Al-Bashir’s indictment.

The French Foreign ministry deputy spokesman Frederic Desagneaux said in statements reported by Kuwait News Agency (KUNA) today that Sudan must cooperate with The Hague based court on extraditing two officials for which arrest warrants were issued by the ICC.

“Concerning Sudan, we call on the Sudanese authorities to commit, without delay, to the necessary cooperation with the ICC and the international community, starting with the application of arrest warrants already handed down by the Court for Ahmed Haroun and Ali Kushayb” Desagneaux said.

Later the French Ambassador to the UN Jean-Maurice Ripert appeared to be taking a softer stance on the issue.

“We had extensive meetings with representatives of the African Union (AU) and I think we are passing the same kind of messages [to Sudan] which stop the killings, stop the military action in Darfur…Do what you can do to alleviate the human suffering and improve the humanitarian access to Darfur…increase and improve the capacity of the authorities to participate in a political dialogue with all political forces….improve your relationship with Chad” Ripert said.

The French envoy stressed that Sudan “has to cooperate with the ICC”.

“I said it repeatedly here. Whatever they do they have to cooperate officially with the ICC. If they want to trial their own citizens in their own countries this is allowed by the [Rome] treaty. But they have to do that in agreement with the ICC. It is never too late to cooperate” he said.

“There are two indicted; Mr. Haroun and Mr. Kushayb. They can cooperate with the ICC on how to try those two people if they want to cooperate. We will see then what happens” the French official added.

“For the moment there is no initiative. If the issue is raised we’ll see. We will see the circumstances” before saying that if Sudan meets these conditions along with facilitating deployment of UNAMID they are willing to support the suspension.

The ICC Statute prevents investigation into crimes that were looked into by local judiciary under the concept of “complementarity”.

The judges of the ICC issued arrest warrants last year for Ahmed Haroun, state minister for humanitarian affairs, and militia commander Ali Mohamed Ali Abdel-Rahman, also know as Ali Kushayb in connection with Darfur war crimes.

Sudan must prosecute Haroun and Kushayb for the same accusations brought against them by the ICC in order for the latter to lose jurisdiction over their cases. Moreover Sudan must then challenge the ICC jurisdiction with the judges.

Last year the Sudanese prosecutor general Salah Abu-Zeid announced that Haroun would be probed on events relating to Darfur war crimes.

But a few days later after Abu-Zeid’s announcement the Sudanese president blocked the investigation and told the daily Al-Sudani newspaper in March 2007 that Haroun “will not resign and will not be dismissed”.

Al-Bashir also said in the interview that Haroun is cleared from any wrongdoings and that he was performing his duties in protecting the lives of citizens and their properties against rebel attacks.

“We don’t know how far up [chain of command] Ocampo’s intends to go to talk about Haroun’s resignation” he added.

Khartoum had long claimed that Kushayb was in custody since November 2006 for investigations into allegations of violations he committed during the peak of the Darfur conflict in 2004.

Sudan’s former Justice Minister Mohamed Ali al-Mardi told a news conference in Khartoum in February 2007 that “”Ali Kushayb, along with two other individuals, was sent for trial. He was detained as a suspect, questioned, his statements were evaluated and witness statements recorded, and then the decision was taken to refer him to court”.

But in March 2007 Kushayb’s trial was delayed when the defendants filed an appeal with the Justice ministry after which Abu-Zeid told reporters that Kushayb’s appeal was denied that there is “sufficient evidence to proceed with the case”.

Shortly afterwards the Sudanese justice ministry ordered a ban on publishing reports or details relating to criminal cases on Darfur conflict and many observers at the time voiced skepticism over Khartoum’s seriousness to try perpetrators of crimes in the war ravaged region.

In early October Sudan’s former foreign minister Lam Akol told the pro-government daily Al-Rayaam from New York that Kushayb was freed “due to lack of incriminating evidence against him”.

However Al-Mardi issued a quick denial to the Al-Rayaam report describing it as “false” without directly commenting on Akol’s statements.

The former Justice Minister was asked again by Al-Rayaam last November on the whereabouts of Kushayb and he reiterated that the militia leader was “never released” before saying that he refrained from commenting on the issue “because it is under investigation”.

Then in April the spokesman for the Sudanese embassy in London, Khalid Al-Mubarak was quoted by Voice of America (VOA) as saying that Haroun and Kushayb were not prosecuted “because there is no evidence against them”.

In June Amin Hassan Omar, a leading figure in the National Congress Party (NCP) and a state minister also confirmed Kushayb’s release.

Last month the Sudanese justice minister Abdel-Basit Sabdarat announced that he appointed a special prosecutor to look into rights abuses committed in war ravaged region of Darfur since 2003.

Sabdarat named Nimr Ibrahim Mohamed as the Darfur prosecutor with 3 assistants; Kamal Mahjoub Ahmed, Al-Hadi Mahjoub Makkawi and Mamoun Mekki Hamid.

Nimr said he is reviewing Kushayb’s file to determine if the case warrants sending it back to court.

But it is unlikely that Haroun would stand trial in court. Sudanese officials also accused France of want to force them to deal with the ICC with regards to Haroun and Kushayb in a sign of recognition to the court.

Khartoum further said it will not accept a tradeoff that suspends Al-Bashir’s indictment in return for handing over the two suspects.

Sudan has not ratified the Rome Statute, but the UNSC triggered the provisions under the Statute that enables it to refer situations in non-State parties to the world court if it deems that it is a threat to international peace and security.

(ST)