ICC’s arraignment of Sudanese president
By Clement Kulang
July 24, 2008 — The statement of the ICC’s Prosecutor Luis Moreno-Ocampo to arraign President Al-Bashir, the head of the Sudanese Government of National Unity (GONU) has raised a lot of controversial questions about the legitimacy of the decision and the jurisdiction of the ICC.1 The controversy stems from the fact that first, the Sudan is not a party to the Statute of Rome of the International Criminal Court establishing the ICC, secondly there is no international precedent similar to what the ICC has proposed i.e. indicting a serving head of state, and thirdly, the decision contravenes one of the well established principles and norms of the international law, state sovereignty. I shall not deal with the principle of sovereignty as it is one of the well established and known principles of international law. However, it worth pointing out that in recent times, there has been debate about the absolute nature of the principle and the circumstances in which it could be argued that human rights take priority over this principle in hideous cases. This debate is still ongoing and no doubt would feature whenever issues like the Darfur crisis come to surface.
The ICC was established by the Rome Statute of the International Criminal Court (the Statute) signed by the representatives of the States parties to the Statute in Rome on 17/07/1998. The States Parties to the Statute agreed on establishing the ICC for their believe that due to the widespread serious violations of human rights, the threat to international peace and security, the impunity with which many perpetrators of atrocities act, and for the sake of a better future and world, there is need to establish an international legal body to bring to question those perpetrators and to ensure that international justice is upheld.2 This is a step which has not been preceded before and was welcomed with mix reactions and responses by members of the international community. As of June 2008 a total of 106 states signed the Statute.3 Some members of the international community ceased the momentum and signed the Statute without hesitation, whereas other opposed it including the USA for fear of abuse of the new system and the risk of their nationals and officials being brought before the ICC for their actions around the world.
M. Minikes, U.S. Ambassador to the Organization for Security and Cooperation in Europe stated that the position of the USA, like the European Union and others regarding those who perpetrate genocide, crimes against humanity, and war crimes is clear as they must be held accountable, and that those horrendous deeds must not go unpunished. The United States has been a world leader in promoting the rule of law. The USA believes that a properly created court could be a useful tool in promoting human rights and holding the perpetrators of the worst violations accountable before the world. But the USA cannot join the European Union in welcoming the entry into force of the International Criminal Court, which the United States believes to be fundamentally flawed. The United States strongly objects to the ICC’s claims of jurisdiction over the nationals, including government officials and service members, of states not party to the treaty. It is concerned that the lack of accountability over the ICC and its prosecutors will result in politically motivated attempts to investigate and prosecute U.S. service members and other government officials. Hence, the USA strongly objects to the ICC’s claim to be able to unilaterally decide whether an U.S. investigation or prosecution was adequate. According to Ambassador Minikes, the treaty provides an opening for the ICC to undermine the role of the UN Security Council in determining when a state has committed an act of aggression.4
It is apparent that the formation of the ICC was bound to be controversial among members of the international community; especially those members who are involved in armed conflicts whether internally or internationally. Nevertheless, the fact that a considerable number of the international community, exceeding 100 signed the Statute in an attempt to show solidarity in the campaign against gross and flagrant human rights violations or to show its willingness to bring to justice perpetrators of such acts as part of the reforms in progress. It is also clear from the outset that the jurisdiction of the ICC is to be complimentary to the national legal system of the States parties or replace it if proven obsolete or sham. The position of the non states parties to the Statute is that the ICC has no jurisdiction over its nationals or officials as long as they have not acceded to the Statute. Nevertheless, it is arguable that according to Article 13 (b) of the Statute, the ICC may exercise jurisdiction in cases referred to the prosecutor by the Security Council acting under Chapter VII of the UN Charter.5
Chapter VII of the UN Charter sets out measures to be taken by the Security Council in order to maintain international peace and security in cases of aggression. The measures include the use of armed force, economical embargo, and severing diplomatic relations. It is well known that the Sudan is not a stranger to the Security Council resolutions since the coming into force of President Al-Bashir in June 1989. The impact of the sanctions on the Government of Sudan remains debatable. On 31/03/2005, the UN Security Council, acting under Chapter VII of the UN Charter, adopted resolution 1593 referring the situation in the Darfur region of the Sudan to the Prosecutor of the ICC, thereby arguably conferring jurisdiction upon the ICC over crimes committed in the Darfur region since 01/07/2002.6
On 04/10/2004, the President of the ICC Judge Phillipe Kirsch and the UN Secretary General Koffi Annan signed the Relationship Agreement between the ICC and The UN (hereafter referred to as the Relationship Agreement). The Relationship Agreement regulates the working relationship between these two organisations, and establishes the legal foundation for cooperation within their respective mandates. The ICC and the UN are two different entities with their separate legal characters. The two organisations recognize the independence of each other. However, they also recognize the importance of cooperating in matters of mutual interests and coordinating their work and share experiences. Hence, came the idea of drafting the relationship agreement, which went through a lengthy process of negotiation between the parties and had been signed by the respective competent bodies within the two organisations bring it into force as of the day of signing.7
The Relationship Agreement covers key categories of procedures to govern the working relationship between the UN and the ICC. First, it addresses the procedure relating to exchanging representatives, the exchange of information and documentation, administrative cooperation, the provision of conferences and facilities and the use of the UN laissez passer as a valid travel document by some ICC officials. Secondly, the agreement covers procedures unique to the ICC as an independent judicial institution and the special nature of the cooperation between the two bodies. In particular, the relationship agreement provides information on the manner the Security Council could refer specific cases to the ICC. The agreement also addresses the role of the ICC Prosecutor within the framework for cooperation and the issue of privileges and immunities as well as confidentiality policy. The most important element of the agreement is the referral of certain cases to the ICC by the Security Council in accordance with Article 13 (b) of the Statute. However, the agreement does not clearly state that referral of cases to the ICC means that the ICC has absolute jurisdiction over states that have not signed the Statute. It stipulates that the ICC could notify the Security Council through the UN Secretary General of non-cooperation by the state concerned. The ICC may also refer the matter back to the Security Council after making finding pursuant to Article 87 of the Statute. Further, the ICC Prosecutor is to report on a regular basis on the action taken with regards to the referred case. 8
There is nothing in Chapter VII of the UN Charter which grants the Security Council the right to compel any member state to accept the jurisdiction of the ICC over matters within its territories. However, Chapter VII gives the Security Council to deal with situations which pause threats to international peace and security by various means including the use of armed force. The referral of the Darfur issue by the Security Council decided to the ICC may well be interpreted as an action taken in accordance with Chapter VII in preference to the use of armed force or other forms of sanctions to resolve the conflict. This is an action that would no doubt get the support of international human rights organisations and activists as it set a precedent that perpetrators of gross and serious human rights violations are held accountable for their actions. Head of states could no longer hide behind the principle of sovereignty of states to barricade themselves.
On the other hand, it could equally be argued that the referral of the Darfur issue to the ICC does not confer jurisdiction since the Sudan is not a signatory to the Rome Statute. The ICC mandate was to investigate the issue and make its report to the Security Council to take necessary action, hence; cooperating on a matter of mutual interests. The terms of reference in the Security Council resolution No. 1593 are far from clear as far as the issue of jurisdiction is concerned. There is nothing in the resolution clearly states that the ICC is to investigate and try the accused notwithstanding the provision of Article 13 (b) of the Rome Statute. Equally, the relationship agreement between the ICC and the UN does not deal with the issue of jurisdiction and merely concentrated on regulating the working relationship between the UN and the ICC as two different entities. The only point mentioned about jurisdiction is in relation to nationals of countries involved in keeping the peace in the region who cannot be held account before the ICC for their action in the course of their duties without the consent of their countries.
No doubt that at the time of drafting the UN Charter, the drafters did not envisage a scenario where there would be an international judicial institution capable of trying serving head of states and as such no provisions in the Charter or particularly in Chapter VII that allows the Security Council to force member states to accept the jurisdiction of an independent international judicial institution formed outside the UN. 9 The provisions of Chapter VII were designed to enable the Security Council to deal with incidents of aggression by a member state or a non member state of the UN against another state. Hence, the measures that could be taken by the Security Council to restore peace in accordance with Article 39, 41, and 42 of Chapter VII of the UN Charter. Hence, I believe the USA objected to the coming into force of the ICC, which would undermine the role of the UN Security Council in determining when a state has committed an act of aggression.
It remains to be seen what action the Security Council would take in light of the decision of the ICC to indict Al-Bashir. It is arguable that the ICC should have reported the matter the Security Council following the conclusion of its investigation for further direction or action by the Security Council. It seems that the Security Council has left the issue entirely at the hand of the ICC with all the controversy it created. Following the ICC announcement, the United Nations Secretary General Ban Ki-moon said that the UN respected the decision and called on the Sudanese government to cooperate with the joint UN-African Union peacekeeping operation in Sudan’s Darfur region, which has been the target of attacks by armed militiamen allegedly with Khartoum’s backing. The secretary general emphasizes that the ICC is an independent institution and that the United Nations must respect the independence of the judicial process. The statement did not go as far to call upon the Sudanese President to hand himself in or at least hand the two other indicted individuals.10
The chair of the African Union called for the decision to be suspended urging the ICC to suspend its decision to seek Al-Bashir’s arrest for a moment until the primary problems in Darfur and southern Sudan are sorted out. Foreign Affairs Minister Bernard Membe told Reuters, speaking on behalf of Tanzanian President Jakaya Kikwete who chairs the AU that they are asking ICC to re-examine its decision. Membe added that it was “not the right time” to seek Bashir’s arrest. “If you arrest al-Bashir, you will create a leadership vacuum in Sudan. The outcome could be equal to that of Iraq. There would be an increase in anarchy; there would be an increase in civil war. Fighting between Chad and Sudan would increase,” he said.11
It could be derived from the UN and the AU statements that they do not take an issue with the jurisdiction of the ICC over the Sudan; otherwise it would have been stated so clearly. The AU is rather worried that the decision of the ICC could hamper the peace process in the Sudan and the UN is keen to encourage the Sudan to cooperate with the international community to resolve these issues. Although the UN and the ICC agreed on respecting each other’s mandates and independent entity, the fact that the UN Security Council referred the issue to the ICC to confer jurisdiction means that the UN has a vital role to play when it comes to the ICC taking action or obliging the Sudan to respect its decision and cooperate.
Be as it may, the decision of the ICC’s Prosecutor to bring charges against Al-Bashir open the door to the Pre-Trial chamber of the ICC to consider the matter in depth and make a finding as to the action to be taken. No doubt that the pre-trial chamber would bear in mind when making its decision, the various competing factors in the case. That includes a thorough look at the evidence put before it as well as issues of jurisdiction and admissibility of the case. It remains to be seen what would be the final outcome of this case bearing in mind that it would have a profound impact on the state of the contemporary international law either way.
The author is a Sudanese lawyer living in the UK. he can be reached at [email protected]