Fact Check: How legally sound is the AL resolution on Sudan’s Bashir ICC warrant?
By Wasil Ali
March 30, 2009 (WASHINGTON) – The Arab League (AL) concluded its annual summit in Qatar today with a statement that contained a strong backing of Sudanese president Omer Hassan Al-Bashir who faces an arrest warrant by the International Criminal Court (ICC) issued earlier this month in connection with war crimes allegedly committed in Darfur.
In 2004 the Arab League sent a fact finding mission to Darfur but the report it submitted was not made public to this day.
On the issue of justice, the Arab League has issued a formal position hailing the inaugration of the special tribunal to look into the assassination of late Lebanese Prime Minister Rafik Hariri.
This year the Arab League also submitted documentation to the ICC prosecutor relating to alleged Israeli war crimes committed during its recent military offensive in Gaza. The Palestinian authority has formally informed the ICC that it accepts its jurisdiction to look into the Gaza case.
The Arab League Secretary General Amr Moussa said last week that crimes committed in Gaza are different from those that occurred in Darfur.
“What is happening in Darfur is a semi-civil war and its responsibility is shared by many parties” the Arab League Secretary General said.
“The arrest warrant [by the ICC] is against a sitting president but what is occurring in Palestinian us a military occupation responsible for all that is committed on the ground” he added.
A look at today’s resolution to see how it squares with international law and UN Security Council (UNSC) resolutions?
ARAB LEAGUE: The ICC’s decision against the Sudanese president as a sitting head of state is a violation of the 1961 Vienna Convention on Diplomatic Relations.
THE FACT: The International Court of Justice (ICJ) ruling in case of the Congo vs. Belgium in 2000 established that there are certain exceptions to the principle of immunity where an incumbent “may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR)….and the future International Criminal Court (ICC)”.
ARAB LEAGUE: Sudan is not bound by the ICC’s decision because it has not ratified the Rome Statute which is considered its founding treaty.
THE FACT: In March 31, 2005 the UNSC adopted resolution 1593 which referred the Darfur case to the ICC. The resolution had to be adopted under Chapter VII of the UN charter pursuant to the Rome Statute since Sudan is not a state party of the court. Algeria, which was the only Arab state sitting on the council at the time, abstained from voting. The statement by the Algerian delegation explaining the vote did not address the issue of jurisdiction.
Sudan has cooperated with the court between 2005-2007 allowing five missions from the ICC to visit and interview military and civilian officials as well as members of the judiciary. The Sudanese army submitted a number of reports to the office of the ICC prosecutor in response to inquiries by the latter.
ARAB LEAGUE: The resolution says that Arab states will not cooperate with the ICC proceedings in relation to Bashir’s case.
THE FACT: The UNSC decided in resolution 1593 adopted under Chapter VII that the government of Sudan “shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor”.
The three Arab states Jordan, Djibouti and Comoros Island have ratified the Rome Statue and as such have a legal obligation to cooperate with the ICC including the execution of arrest warrants. Jordan has given clear indication that it will abide by the Rome Statute.
If any of the three states decides remove itself from the Rome Statute, the withdrawal will take effect at least one year after such a notification is made.
ARAB LEAGUE: The Pre-Trial Chamber I must annul its decision of issuing an arrest warrant against the Sudanese president.
THE FACT: The Rome Statute contains no provisions for nullifying arrest warrants unless all charges contained are not confirmed or withdrawn by the prosecutor during the confirmation hearings. Any such finding may only be made by the judges of the chamber only based on evidence provided. The UNSC has the power under Article 16 of the Rome Statute to halt proceedings in a case for 12 months but cannot scrap it. Otherwise the warrant remains in effect until the suspect is arrested or is deceased.
ARAB LEAGUE: The ICC’s decision is detrimental to peace in Sudan and the Darfur region.
THE FACT: The UNSC asserted in resolution 1593 that judicial processes along with reconciliation mechanisms “reinforce the efforts to restore long-lasting peace” in Darfur.
ARAB LEAGUE: Sudan’s “qualified” judiciary must be given a chance to implement justice in Darfur. The Arab League hailed measures by Sudan with regard to prosecuting Darfur war crimes.
THE FACT: The UN commission of inquiry to look into Darfur abuses in 2004 concluded that Sudanese judiciary is “is unable and unwilling to address the situation in Darfur”. The panel stated that executive powers “undermined the effectiveness of the judiciary”. Furthermore the commission noted that “Sudanese criminal laws do not adequately proscribe war crimes and crimes against humanity, such as those carried out in Darfur, and the Criminal Procedure Code contains provisions that prevent the effective prosecution of these acts”.
One of the five commission members was the former Egyptian information minister Mohamed Fayek who is a leading figure in the Arab Nationalistic Nasserite [named after late Egyptian president Jamal Abdel-Naser] party.
In an interview with Al-Arabi newspaper Fayek said that the ICC represented the best option for prosecuting Darfur war crime suspects. He further said that the Sudanese government internal proceedings “are not consistent with the magnitude of crimes committed” and deplored “the culture of impunity” along with “executive control over the judiciary”.
Even though Fayek accused the US of setting its eyes on the oil reserves in Sudan, he blamed Khartoum for “providing the opportunity for foreign forces to intervene by continuing the pattern of internal errors that led to what happened in Darfur”.
The complementarity principle in the Rome Statute allows the state to conduct its own proceedings relating to the same committed by suspects investigated by the court. If the judges are convinced that the trials are genuine the ICC loses its jurisdiction over the case.
Sudanese officials themselves have pointed out that they cannot conduct investigations in Darfur due to the ongoing conflict. A report produced by the Sudanese government in September 2008 shows that only seven cases were being prosecuted relating to minor and individual crimes.
(ST)