This analyis was prepared by the Public International Law & Policy Group
The arguments surrounding the recent Application for an Issuance of an Arrest Warrant by the Prosecutor of the International Criminal Court for President Al Bashir of Sudan for crimes against humanity and genocide demonstrate the prevalence of myths regarding the role of justice in the peace process. In anticipation of a ruling on the Application for the Issuance of an Arrest Warrant for Al Bashir[1] (the Application) some within the international community asserted that the Application will both inflame violence and undermine efforts to negotiate a peaceful resolution of the Sudan conflict. Further, several common objections to the Application perpetuate procedural myths about the process of securing an arrest warrant as well as the jurisdiction of the International Criminal Court (ICC). Four of the myths created by these arguments regarding the role of justice in the peace process in Darfur are discussed below.
Myth #1: The Application for the Issuance of an Arrest Warrant is Based on Ten Pages of Evidence.
Reality: The Ten Page Application Is a Summary of the Evidence That was Presented to a Panel of Three Judges.
Prior to seeking the Issuance of an Arrest Warrant, the ICC Prosecutor collected evidence from 105 missions in eighteen different states. This evidence included eyewitness and victim statements, interviews of Sudanese officials, reports from both the United Nations’ (UN) Commission of Inquiry and the Sudanese National Commission of Inquiry, as well as materials from open sources. This evidence was made available to the three-judge panel of the ICC Pre-Trial Chamber. The ten-page document ultimately submitted represents only a summary of the evidence collected.
After the Prosecutor’s Application, a three-judge panel reviews the evidence presented to determine if it is sufficient to issue an arrest warrant. Since 2003, Prosecutor Moreno-Ocampo has filed twelve applications for the Issuance of an Arrest Warrant, all of which have been accepted and issued by the panel of judges.
Myth #2: The ICC Does Not Have Clear Jurisdiction in Sudan.
Reality: The UN Charter, UN Security Council Resolution 1593, and the Treaty Bringing the ICC Into Force All Provide a Clear Jurisdictional Basis for ICC Involvement in Sudan.
The statute of the International Criminal Court (ICC) provides that it may exercise jurisdiction with respect to the crime of genocide, crimes against humanity, war crimes, and crimes of aggression if, “[a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.”[2]
On March 31, 2005, the UN Security Council adopted resolution 1593 referring the situation in Sudan to the ICC. The resolution formally decides, “to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court.”[3] This resolution, adopted under Chapter VII of the UN Charter, is binding on all member states of the UN – including Sudan.
The ICC statute provides for complementarity, which allows states to retain jurisdiction over genocide, war crimes, and crimes against humanity unless the state is unwilling or unable to genuinely investigate or prosecute alleged crimes.[4] In the situation of Sudan, the ICC sanctioned the Issuance of an Arrest Warrant for several Sudanese citizens located in Sudan. To date, the Sudanese government has refused to comply with the arrest warrants, and has not considered appropriate domestic mechanisms. In fact, Mr. Ahmed Haroun, who is sought by the ICC for war crimes and crimes against humanity allegedly committed in Darfur, currently holds the position of Minister of State for Humanitarian Affairs and is responsible for delivering humanitarian aid to Darfur.
The ICC has a clear jurisdictional mandate for action in Sudan. The Sudanese government has remained unwilling to genuinely investigate and prosecute alleged international crimes occurring in Darfur. As a result of this inaction the UN Security Council referred the situation of Darfur to the ICC. The power of the UN Security Council to issue such a referral is established in the Rome Statute and is binding on all states, including Sudan.
Myth #3: The ICC Undermines the Sovereignty of African States.
Reality: The Treaty Establishing the ICC Was Signed by 106 States, Including Thirty African States. Three of the Four Matters Currently Before the Court Were Referred by African States.
Thirty African states, including Kenya, Chad, Senegal, South Africa, Nigeria, Uganda, and Liberia have ratified the statute of the ICC. In August, President Museveni of Uganda, declared that he does not “condemn” the Application, and believes that ignoring Al Bashir’s criminal liability simply because he is president would “be ignoring the right of the victims.”[5]
The ICC has investigations in several states in Africa at the request of the African governments. The government of the Democratic Republic of Congo, the government of Uganda, and the government of the Central African Republic have all requested that the Prosecutor of the ICC investigate alleged crimes occurring in their states. As a result, the ICC agreed to assume jurisdiction in the following instances. In the Democratic Republic of the Congo, the ICC assumed jurisdiction to investigate whether crimes had been committed within the country by paramilitary organizations. The ICC assumed jurisdiction in Uganda when the Government requested the prosecutor to investigate the Lord’s Resistance Army’s actions in Uganda. The Government of the Central African Republic also requested the Prosecutor investigate whether crimes had been committed on its territory. These African governments support the ICC action in their respective countries.
While the government of Sudan did not itself refer the action to the ICC in a manner similar to other African states, the ICC assumed jurisdiction over the conflict in Darfur after the UN Security Council, under the authority granted to it by Article 13(b) of the Rome Statute, referred the situation to the ICC in 2005. This form of jurisdiction is clearly articulated in the Statute. Further, this request has been strongly supported by many citizens of Sudan such as Darfuri victims, as well as by African civil society organizations, and by some African governments. In recent weeks the Omdas (Darfuri leaders) of the Goz-Amir refugee camp in Chad, which shelters more than 19,000 Darfuri refugees,[6] sent a letter to the ICC voicing their support of the Prosector’s Application and called for his “immediate” arrest.[7] A poll conducted by the Arab television station Al-Jazeera TV found that fifty-two percent of Arab respondents “support having their leaders face international justice” mechanisms like the ICC.[8] Darfuri rebel groups, unsurprisingly, also support the Application.[9] As noted above, Ugandan President Museveni recently recognized the rights of victims in Darfur.[10]
With three African states already referring matters to the ICC for resolution, as well as the support of some African governments and many civil society organizations for the ICC, the ICC does not unjustifiably undermine the sovereignty of Sudan. Rather, the ICC and this Application enforces the rights of African citizens and victims of the Darfur conflict.
Myth #4: The Issuance of an Arrest Warrant for Al Bashir will Lead to More Violence in Darfur.
Reality: Though the Violence in Darfur may Continue, It Is Not Clearly Caused by the Issuance of an Arrest Warrant.
As explained by the Minister of Foreign Affairs of The Netherlands, even though there is a risk to increased violence, there cannot be a lasting peace in Sudan without justice.[11] The introduction of justice may change the dynamic so that the peace process is taken more seriously by Sudan. Dr. Paul Williams has argued, “The indictment of Bashir and Sudan is actually a positive step in the peace process, because it will clarify the nature of the conflict.”[12] John Prendergrast of Enough agrees saying, “The status quo in Sudan is one of the deadliest in the world. Until there is a consequence for the commission of genocide, it will continue. This action introduces a cost, finally, into the equation.”[13]
There may be continuing or even increased violence in Darfur, and those who oppose the Application will likely point to that violence as a vindication of their view; however, such an argument does nothing to advance the interests of peace. Attacks against civilians, refugees, and peacekeepers continue in Darfur after more than five years of violence. In response to the Application, some officials in Al Bashir’s Government threatened increased violence, particularly directed at peacekeepers and humanitarian aide workers.[14] Such attacks on peacekeepers may be war crimes under the Rome Statute. Al Bashir recently suggested he could expel the UNAMID force if he is indicted.[15] These assertions by the government of Sudan demonstrate clear hostility to the peace process in Darfur and contempt for the international community’s desire to end the conflict in Darfur. In no domestic jurisdiction could a government official assert that efforts to prosecute suspected criminals should be curtailed because they may lead to increased violence from those suspects. The global community cannot accept a similar argument from the critics of international justice.
Proponents of the Application argue that it may actually “advance the interests of peace” because “the increased pressure now placed on the [National Congress Party] governing regime will lead it to take long overdue steps to cease all violence, implement genuine and credible measures to resolve the Darfur crisis—including allowing the full and effective deployment of the UNAMID peacekeeping force—and fully carry out its side of the bargain to implement the North-South Comprehensive Peace Agreement (CPA).”[16] Media outlets recently quoted Sudanese Foreign Minister, Deng Alor as saying, “Everything short of the presidency is on the table,” which implies that the Government of Sudan may finally be willing to hand over the two Sudanese officials previously indicted by the ICC.[17]
In the wake of the Application, the Government of Sudan also reportedly began to use domestic courts to investigate crimes in Darfur. In August, the Sudanese Justice Minister appointed an investigator to examine the crimes in Darfur,[18] and the Government of Sudan has established committees to support the Justice Minister’s mandate.[19] The Special Investigator recently confirmed he is investigating Ali Kushayb, who has been previously indicted by the ICC for war crimes.[20] While the Government may be using these mechanisms in a purely political effort to placate the ICC, it nevertheless represents movement on the Darfur peace process thereby possibly breaking the years of status quo.
Statements and actions by the Government of Sudan in the wake of the Application suggest that the Application may promote justice as well as peace, despite continued threats of violence. Indeed, some analysts suggest that the Application may force the Sudanese Government to negotiate because it created a situation that may be “beyond the political and diplomatic capacity of the government.”[21]
About the Public International Law & Policy Group
The Public International Law & Policy Group, a 2005 Nobel Peace Prize nominee, is a non-profit organization, which operates as a global pro bono law firm providing free legal assistance to states and governments involved in peace negotiations, drafting post-conflict constitutions, and prosecuting war criminals. To facilitate the utilization of this legal assistance, PILPG also provides policy formulation advice and training on matters related to conflict resolution. The Public International Law & Policy Group has advised the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, The Special Court for Sierra Leone, and the Iraqi Special Tribunal; states in peace processes including the Anuak, Bosnia and Herzegovina, Kosovo, and Darfur rebel movements, as well as key leaders of the Darfur Diaspora affected by the conflict.
[1] On July 14, 2008, Chief Prosecutor of the ICC Luis Moreno-Ocampo presented evidence in a “Summary of the Case” to the Pre-Trial Chamber regarding the Situation in Darfur, The Sudan in the “Prosecutor’s Application for Warrant of Arrest under Article 58 Against Omar Hassan Ahmad Al Bashir;” Article 58 of the Rome Statute provides the ICC Pre-Trial Chamber the authority to issue a warrant for arrest.
[2] Rome Statute Art. 13, available at http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf.
[3] Security Council Resolution 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), available at http://daccess-ods.un.org/access.nsf/Get?Open&DS=S/RES/1593%20(2005)&Lang=E&Area=UNDOC.
[4] Rome Statute, Art. 1, available at http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf.
[5] Ugandan president does not condemn ICC indictments against Sudan’s Bashir, The Sudan Tribune, Aug. 3, 2008, available at http://www.sudantribune.com/spip.php?article28133.
[6] Chad: Attacks bring new wave of displacement in south-east, Reuters, Apr. 3, 2007, available at http://www.alertnet.org/thenews/newsdesk/UNHCR/cb5d54e6277e9054d31c3eaf86f3b829.htm.
[7] Darfur refugee chiefs in Chad hail ICC move against Sudan president, The Sudan Tribune, Aug. 26, 2008, available at http://www.sudantribune.com/spip.php?article28407.
[8] Poll shows most Arabs want to see their presidents stand before international tribunals, The Sudan Tribune, Aug. 13, 2008, available at http://www.sudantribune.com/spip.php?article28272.
[9] Darfur rebels hail Uganda’s stance on ICC, The Sudan Tribune, Aug. 4, 2008, available at http://www.sudantribune.com/spip.php?article28142.
[10] Ugandan president does not condemn ICC indictments against Sudan’s Bashir, The Sudan Tribune, Aug. 3, 2008, available at http://www.sudantribune.com/spip.php?article28133.
[11] Maxime Verhagen, Minister of Foreign Affairs, the Netherlands, “NOVA”, http://player.omroep.nl/?aflID=7479389 (July 14th, 2008).
[12] Robert Marquand, For Darfur, A Step Towards Justice, The Christian Science Monitor, Jul. 15, 2008, available at http://www.csmonitor.com/2008/0715/p01s02-woeu.html?page=1.
[13] John Norris, David Sullivan, and John Prendergast, The Merits of Justice, Enough, Jul. 14, 2008, available at http://www.enoughproject.org/node/974.
[14] Beshir Aide Makes Darfur Peacekeeper Threat, Agence France-Presse, Jul. 25, 2008, available at http://afp.google.com/article/ALeqM5jGt3×95NlA_P8z1VYgJK9Jcw0zWw (last visited Aug.3, 2008).
[15] Sudanese president makes first public threat to expel peacekeepers, The Sudan Tribune, Aug. 22, 2008, available at http://www.sudantribune.com/spip.php?article28364.
[16] The International Crisis Group, New ICC Prosecution: Opportunities and Risks for Peace in Sudan, Jul. 14, 2008, available at http://www.crisisgroup.org/home/index.cfm?id=5572&l=1.
[17] Lydia Pologreen and Jeffrey Gettleman, Sudan Rallies Behind Leader Reviled Abroad, The New York Times, Jul. 28, 2008, available at http://www.nytimes.com/2008/07/28/world/africa/28sudan.html.
[18] Sudan appoints prosecutor to investigate crimes in Darfur, Xinhua, Aug. 6, 2008, available at http://news.xinhuanet.com/english/2008-08/06/content_8990426.htm.
[19] Sudan establishes additional committees for Darfur war crimes, Sudan Tribune, Sept. 21, 2008, available at http://www.sudantribune.com/spip.php?article28689.
[20] Sudan probes Janjaweed leader indicted by ICC, Sudan Tribune, Sept. 3, 2008, available at http://www.sudantribune.com/spip.php?article28488.
[21] ICC crisis more than Sudan government can handle: Analyst, Sudan Tribune, Sept. 11, 2008, available at http://www.sudantribune.com/spip.php?article28582.
Comment #1
jcg24 said,
Discussion of myth number three requires further consideration. While it is true that the ICC has jurisdiction in Sudan, it may, in fact, be true that the operation of the court does undermine the sovereignty of the Sudanese state. The myth discussed by PILPG that “the ICC undermines the sovereignty of African states” is rebutted in a less than satisfactory manner here.
To begin, the jurisdiction of the ICC in Sudan should be affirmed. To expand upon the explanation presented above, the ICC is granted jurisdiction in states by one of three methods:
1) The country is party to the 2002 Rome Statute, which created the court [1]
2) A government can ask the ICC to prosecute perpetrators [2] of genocide, crimes against humanity, war crimes, or the crime of aggression [3]
3) When the country is not party to the Rome Statute and has not requested the court to prosecute, the Security Council may refer crimes to the ICC under Chapter VII of the U.N. Charter [4,5]
Sudan is a member state of the U.N. [6] However, Sudan is not party to the Rome Statute: it did sign, but failed to ratify the document. As a result, the ICC was granted jurisdiction through the third method, where the Security Council referred the conflict to the ICC in 2005. [7]
The ICC clearly has rightful jurisdiction in Sudan. This fact, however, does not clearly indicate that the ICC does not undermine the sovereignty of the state. Sovereignty, as defined by Black’s Law Dictionary, or similarly in any other source, is “supreme dominion, authority, or rule.” If the ICC operates in Sudan, in spite of the Sudanese state’s rejection of its jurisdiction [8], the ICC clearly violates the “supreme dominion, authority, or rule” of the Sudanese state. In fact, the discussion of myth number three from PILPG states that, “the ICC does not unjustifiably undermine the sovereignty of Sudan. Rather, the ICC and this Application enforces the rights of African citizens and victims of the Darfur conflict.” PILPG therefore directly validates myth number three, that the “ICC undermines the sovereignty of African states,” instead of disproving it.
The myth PILPG should have set out to disprove is that the ICC “does not unjustifiably undermine the sovereignty” of African states. [Emphasis added.] If this had been the argument propagated by PILPG, the discussion about African states that have ratified the Rome Statute, requests by African states to investigate crimes, and the support of other African states and Sudanese organizations, groups, and citizens would have been relevant. However, in the discussion of whether or not the ICC undermines the sovereignty of African states, these supporting arguments are mere anecdotes and rationalization for a court that does, in fact, undermine the Sudanese state.
Determining when undermining a state is justifiable is a complex issue. In the case of Sudan, it would be quite difficult to make an argument against justification, considering the abuses of human rights that are evident there. One could even question Sudan’s sovereignty at a more basic level, as Sudan is generally considered to be a failed state, or at least nearing failed status. [9,10] If a state is failed, does it have sovereignty? Can its sovereignty be undermined? PILPG could and should have investigated these issues in its analysis.
[1] Rome Statute, Art. 12(1), available at http://www.icc-cpi.int/library/about/
officialjournal/Rome_Statute_English.pdf
[2] Id., Art. 13(a)
[3] Id., Art. 5
[4] Id., Art. 13(b)
[5] John Boonstra, How the ICC Came to Sudan. 23 July 2008, U.N. Dispatch, available at http://www.undispatch.com/archives/2008/07/how_the_icc_cam.php
[6] U.N. Member States, available at http://www.un.org/members/list.shtml#s
[7] Opheera McDoom, Sudan delays trial of Darfur suspect wanted by ICC. 8 March 2007, Reuters, available at http://uk.reuters.com/article/worldNews/idUKL0866461520070308?pageNumber=1&virtualBrandChannel=0
[8] Aziz El-Kaissouni, Sudan rejects ICC jurisdiction, says one suspect held. 27 Feb 2007, Reuters, available at http://www.alertnet.org/thenews/newsdesk/L27385823.htm
[9] Sudan Tops ‘Failed State Index’. BBC, 2 May 2006, available at http://news.bbc.co.uk/2/hi/africa/4964444.stm
[10] Opheera McDoom,ANALYSIS-Sudan a failed state? Depends where you live. 19 June 1007, Reuters, available at http://www.alertnet.org/thenews/newsdesk/L19515002.htm
February 9, 2009 at 1:03 am