01 Apr 2009: ISS Today: Beyond the Al Bashir Arrest Warrant: Legal and Diplomatic Options for Sudan

1 April 2009: Beyond the Al Bashir Arrest Warrant: Legal and Diplomatic Options for Sudan

 

The International Criminal Court’s (ICC) decision to issue an arrest warrant on the 4th of March 2009 against President Omar Al Bashir of Sudan for war crimes and crimes against humanity has sparked substantial international debate. Among others, the debate has touched broadly on the legal and political implications of the arrest warrant and in particular the fate of the stalled Darfur peace process, the Comprehensive Peace Accord (CPA) with South Sudan, other peace arrangements in place and the forthcoming elections in that country.

 

The government of Sudan has been defiant in the face of the warrant, making three main arguments consistently: that Sudan is not a party to the Rome Statute of the International Criminal Court (ICC) and that they are not bound by its decisions; that the United Nations Security Council (UNSC), an essentially undemocratic institution cannot purport to subject Sudan to an institution it has not accepted; and that Sudan, as a sovereign nation, is in a position to address the situation in Darfur through its institutions, including the judiciary it claims is independent, able and competent. For their part, the African Union (AU) and the League of Arab Nations have condemned the issuance of the arrest warrant as prejudicial to peace efforts and that the UNSC should deploy article 16 of the Rome Statute to suspend the ICC proceedings.

 

Given the above context, there are now primarily two strategies open to Sudan vis-à-vis the ICC process: 1) to reject the Court completely and see how matters unfold or; 2) engage the Court through available legal avenues. Diplomatic measures, while useful in shoring up support among various constituencies does not advance Khartoum’s ends as long as the matter remains before the judicial process at the ICC.

 

This piece does not dwell on the first strategy, which has been the mainstay of Khartoum’s approach to the ICC to date. Coupled with aggressive diplomatic demarches, the government of Sudan has deployed this strategy deftly until now. However, rejection and refusal to recognise the ICC has its limits.

 

At least two reasons necessitate a rethink of strategy. First, the fact that rejection and aggressive diplomacy has not prevented the ICC from proceeding against identified suspects, having properly acquired jurisdiction over Darfur by UNSC Resolution 1593 in terms of article 13(b) of the Rome Statute. Secondly, the demand by Khartoum, AU, Arab League and others for an article 16 deferral action has a limited prospect of success. At a political and diplomatic level, the decision has to garner nine out of 15 votes at the UNSC, including the P5 (or none using their veto power). The fact that China and Russia are amenable to such action does not guarantee success.

 

Moreover, Chapter VII (UN Charter) legal criteria have to be met. When referring the matter to the ICC, the UNSC had found that the situation in Darfur constituted a threat to international peace and security. It can be argued that the same criteria applies to deferral decision with the effect that a deferral decision depends on one of two conditions: that there has been a fundamental change on the ground in Darfur (therefore the situation no longer constitutes a threat to international peace and security), or that continuing the ICC process is a greater threat to international peace and security than deferring it and that on a balance, deferral is the more desirable action.

 

On many accounts, the situation in Darfur has clearly deteriorated since 2005, more recently with the expulsion of humanitarian organisations. Therefore, it would take a good measure of sophistry for the UNSC to convince the world that the threat to international security no longer exists. Deploying the second plank of the argument would be interpreted as the UNSC bowing to pressure from Khartoum and the UNSC is unlikely to want to send the message that it acted in vain in the first place, even if the deferral is only temporary.

 

It is suggested that for these reasons, the second strategy, that of engagement of the ICC is worth pursuing. Article 17 of the Rome Statute, the ‘admissibility clause’ provides the legal avenue for such action by Khartoum. In terms of article 17, a state that is subject of proceedings is allowed to raise an objection before the ICC to the effect that for a number of reasons, the ICC cannot properly continue with proceedings that are underway. The state would argue that there are, or have been investigations or prosecutions touching on crimes that the ICC is investigating or prosecuting. However, this presupposes that domestic law enforcement is functional and that there is a genuine process to deal with relevant crimes. Khartoum has recently suggested that this is the case: that there are ‘investigating committees’ probing crimes committed in Darfur. It is suggested further that a law criminalising war crimes has been introduced.

 

Only Sudan has standing to make these arguments motivating why the ICC should not continue. Recently, an application by a group of NGOs from Sudan making materially similar arguments was rejected by the ICC for lack of standing. However, to appear before the ICC, it presupposes that Sudan acknowledge the ICC, a fact that it has so far refused to do. Nevertheless, engaging the ICC has its merits. It allows Sudan to make the arguments that it has so far been making in political fora before one that really matters, and which can act on it.

 

It would be difficult for the ICC to insist on proceeding if Sudan were to make a strong case before the Court, suggesting that it (Sudan) is both able and willing to investigate and prosecute. In terms of complementarity, the ICC’s jurisdiction is only triggered when the state is either unable or unwilling to genuinely investigate or prosecute. When such proceedings are instituted after the ICC has commenced its work, the Court would have to defer to a genuine national process. It is however up to Khartoum to convince the ICC as much. That means engaging the Court. In view of the limited prospect of article 16 deferral, as argued above, and given that the ICC process cannot just be wished away, article 17 option seems attractive. It remains to be seen how the matter unfolds in the coming days.

 

Godfrey Musila Senior Researcher, International Crimes in Africa Programme, ISS Tshwane (Pretoria)

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