The Role of the International Criminal Court and United Nations in Sudan

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___________________________________________________ WRITTEN SUBMISSION ON THE ROLE OF INTERNATIONAL CRIMINAL COURT AND UNITED NATIONS IN SUDAN __________________________________________________ Background The Darfur war is a war conducted by the Sudanese Government against the rebel groups in the Darfur region of western Sudan. The war began in the year 2003 when rebel groups like the ‘Sudan Liberation Army’ and Justice & Equality Movement started a fight against the Sudanese government as it was accused of oppressing the non-Arab population in the Darfur region. The government in reprisal carried out ethnic cleansing of the non-Arab population in Darfur with the help of Arab militants like Janjaweed and mainly targeted the African tribes of the region in order to expel the rebellions from the region. This ethnic cleansing of the African tribe by the Sudanese government resulted in the killing of thousands of civilians and uprooted million others.[1] The matter was first investigated by the United States who termed the crimes committed as genocide and consequently a commission was appointed by the United Nations Secretary General Koffi Annan to enquire into the crimes committed in the Darfur region. The commission in its report submitted to the UN Security Council said that serious level of war crimes and humanity crimes have been committed in Darfur but did not directly accused the Sudanese Government of the crimes committed and requested further enquiry by handing over the case to the International Criminal Court. The Security Council passed a resolution to refer the matter to the Prosecutor of the International Criminal Court by a vote of 11 in favour, none against with 4 abstentions and decided that the Government of Sudan and other parties involved should co-operate fully with the ICC.[2] This enquiry also resulted in the accusation of the Sudanese President Omar Al-Bashir on the counts of committing genocide and humanity crimes. Power of ICC to investigate the matter The Darfur Situation was referred to the ICC by the Security Council on 31st March, 2005. This was the first ever matter referred by the Security Council to the ICC. Looking at the situation in Darfur, the international community came out and raised their concerns with respect to the war crimes being committed by the Government against the non-Arab population. The matter was subsequently taken up by the United Nations by virtue of the power given to it under Article 39 of the UN Charter. Article 39 of the Charter states that:- “Article 39 The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”[3] So by exercising its power the United Nations appointed a Commission to look into the matter who after conducting due enquiry submitted the report to the UN Security Council. Further the Security Council referred the matter to the International Criminal Court looking at the grave offences involved in the matter. Further, Article 5 of the Rome Statute of the International Criminal Court, 1998 gives jurisdiction to the ICC with regards to the serious crimes concerning the international community at large. It gives a number of crimes such as Genocide, Crimes against humanity, War crimes, etc with regards to which the Court shall exercise its jurisdiction.[4] As report submitted by the commission appointed by the United Nations there was clear indication of crimes such as Genocide, crimes against humanity, war crimes etc which gives ICC clear jurisdiction in the matter as per Article 5 of the Rome Statute, 1998. But the main issue that was involved with regards to the involvement of the ICC was that as Sudan was not a member party of the Rome Statue of 1998 which established the International Criminal Court, was the matter within the jurisdiction of the ICC? The answer to this question lies in Article 13 (b) of the Rome Statute of the International Criminal Court, 1998 which states that with regards to a crime mentioned in article 5, the Court can exercise its jurisdiction if the crime committed is referred to the ICC prosecutor by the UN Security Council as per the provisions of Chapter VII of the UN Charter. [5] So the matter was referred to the ICC by the Security Council while exercising its power under Article 39 (Chapter VII) of the UN Charter as the situation in Darfur constituted threat to the international peace and security as the non-Arab population was targeted in millions and their existence was in danger as the Government itself along with other militants was conducting such ethnic cleansing. Where jurisdiction in a case is granted to the ICC by the reference made by the Security Council, the jurisdiction is valid and strong and the consent of the state is not of importance in such a case. [6] Current Situation In, March 2009, International Criminal Court issued the warrants against the Sudanese President, Omar Al-Bashir, Ministers Ahmed Harun and Abdelrahim Mohamed Hussein, militia leader Ali Kushayb for committing crimes such as genocide, crimes against humanity and war crimes[7] by exercising its power of issuing warrants under Article 58 of the Rome Statute, 1998. As reported by the Chief Prosecutor of ICC Fatou Bensouda to the UN Security Council crimes are still being committed against the non-Arab population in Darfur and no arrests were made with regards to that. The reaction of the Sudanese Government was not promising when it comes to punishing the accused person. The ICC and the UN continuously asked for the government’s help in arresting the accused but no actions have been taken up by the Sudan Government. As Sudan continuously failed to co-operate with the ICC by refusing to execute the arrests of the accused and to indulge into any kind of conversation with the authorities, the ICC on 9th March 2015 decided to inform the UN Security Council about the failure of the Sudanese Government in arresting and surrendering the accused person and asked them to take the measures as it deem fit. So the matter has again been referred to the UN Security Council and has been left on its discretion to take the necessary actions as it may deem fit.[8] Prosecuting the Head of the State and other State officials As per Customary International law, a head of state cannot be prosecuted. But Article 27 of the Rome Statute, 1998 was introduced purposely to bring them under the ambit of international criminal justice.[9] As per the Rome Statute of 1998, a head of the State just like any other person can be prosecuted. A normal person other than head of a State may be prosecuted under Article 25 of the Statute which talks about Individual criminal responsibility and says that the ICC will have jurisdiction over all the persons committing crime within its jurisdiction.[10] So Article 25 gives the Court jurisdiction to prosecute any person who has committed any crime within the Court’s jurisdiction. The language of Article 25 suggests that the Court will have jurisdiction with regards to any person who is signatory of the Rome Statute of 1998. Generally, the Court’s jurisdiction is also only limited to its member state, though Sudan is not a member party to the Rome Statute of 1998 but still ICC can validly claim the jurisdiction on any person belonging to Sudan as the matter was specifically referred to the ICC by the UN Security Council by virtue of its power under Chapter VII of the UN Charter. So even though Sudan was a non-state party, ICC can prosecute any person belonging to Sudan and hence the Ministers Ahmed Harun and Abdelrahim Mohamed Hussein and the militia leader Ali Kushayb can be charged and prosecuted by the ICC. But the Sudanese President Omar-Al Bashir is not subjected to Article 25 of the Rome Statute of 1998. Being the head of the State he cannot be prosecuted just like other normal persons and the other ministers. For this, Article 27 was introduced in the Rome Statute of 1998, which states as: “Article 27 Irrelevance of official capacity 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”[11] As clearly pointed out by Article 27(1) that no distinction shall be made between any person and that the Statute shall apply equally to everyone irrespective of the positions held by them. This proposition suggests the idea that under the International criminal law no person can be exempted of the sins that he have committed merely on the ground that he is a head of the state. Everyone stands at the same footing under the International criminal justice system. Further, Article 27(2) puts the provision of this Statute above other National or International law which provides immunity to the head of the state on the basis of his official capacity. It says that the Court will have jurisdiction over that person irrespective of the immunities granted to him under other laws. So by reading Article 25 and 27 of the Rome Statute, Omar-Al Bashir along with the accused ministers can be charged comprehensively. But now the dispute that arises is with regards to Article 98(1) of the Rome Statute, which states: “Article 98 Cooperation with respect to waiver of immunity and consent to surrender 1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”[12] So there seems to be a clear contradiction between Article 27 and Article 98(1) of the Rome Statute. Article 98(1) provides that the state can avoid compliance with regards to surrender or assistance with respect to diplomatic immunity of a person. As per Article 27 official immunities are not to be considered by the Courts, than why such immunities should be considered by the Court in case of request made by the State with regards to surrender or assistance? If all the states starts requesting to avoid compliance with the surrender order only because the person sought for enjoys official immunity and the Court considers such request and does not proceed than that in itself would render the purpose of Article 27 meaningless.[13] But as no such requests were made by Sudan as it did not indulge into any kind of talks with the ICC authorities, the arrest of Omar-Al Bashir along with the Ministers and other persons can be made by the virtue of Article 25 and Article 27 of the Rome Statute of the International Criminal Court, 1998. Conclusion & Suggestion The war crimes committed in Darfur by the government of Sudan against the non-Arab population in the Darfur region of Sudan has attracted the eyes of the International community at large. The UN Security Council referred the matter to the ICC after passing a resolution under the provisions of the Chapter VII of the UN Charter. Sudan though not a signatory to the Rome Statute of 1998 establishing the International Criminal Court, is still obliged by the ICC because of Article 13(2) of the Rome Statute as the case was referred by the UN Security Council. Subsequently summons was also issued against the Sudanese President Omar-Al Bashir along with others but no actions were taken by Sudan. As Sudan failed in complying with the directions issued by International Criminal Court and has not surrendered the accused to the custody of the ICC, the ICC has again referred the matter back to the United Nations Security Council, now it is upto the Security Council to take the measures under the International law. The possible measures that can be taken up by the Security Council include sanctions that may be imposed internationally on Sudan. Sanctions though are not a perfect tool of action but it is the only viable option available right now as military intervention in Sudan should not be promoted now as it is too late for such action as it should have been taken in the first place itself when the war crimes and genocide was committed in Sudan way back in the year 2005. Sanctions such as financial, trade, travel etc may be imposed on Sudan as it is necessary to put some pressure on the country so that as the situation gets worse for Sudan in the International arena, it considers complying with the directions of ICC and UN Security Council.
[1] Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General http://www.un.org/news/dh/sudan/com_inq_darfur.pdf Browsed on 3rd April, 2015 [2] Security Council refers the situation in Darfur to ICC http://www.un.org/press/en/2005/sc8351.doc.htm Browsed on 3rd April, 2015 [3] Charter of the United Nations, Article 39 http://www.un.org/en/documents/charter/chapter7.shtml Browsed on 4th April, 2015 [4] Rome Statute of the International Criminal Court, Article 5 http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf Browsed on 4th April, 2015 [5] Rome Statute of the International Criminal Court, Article 13 http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf Browsed on 5th April, 2015 [6] Heyder Corrina, The U.N. Security Council's Referral of the Crimes in Darfur to the International Criminal Court in Light of U.S. Opposition to the Court: Implications for the International Criminal Court's Functions and Status; Berkeley Journal of International Law, Volume 24, Issue 2, 2006 http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1317&context=bjil Browsed on 6th April, 2015 [7] http://www.un.org/apps/news/story.asp?NewsID=43764#.VR6L_9KUdi8 Browsed on 5th April ,2015 [8] http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1094.aspx Browsed on 6th April, 2015 [9] Wardle Phillip, The Survival of Head of State Immunity at the International Criminal Court, Australian International law Journal http://www.austlii.edu.au/au/journals/AUIntLawJl/2011/9.pdf Browsed on 6th April, 2015 [10] Rome Statute of the International Criminal Court, Article 25(2) http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf Browsed on 7th April, 2015 [11] Rome Statute of the International Criminal Court, Article 27 http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf Browsed on 7th April, 2015 [12] Rome Statute of the International Criminal Court, Article 98(1) http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf Browsed on 7th April, 2015 [13] Wardle Phillip, The Survival of Head of State Immunity at the International Criminal Court, Australian International law Journal http://www.austlii.edu.au/au/journals/AUIntLawJl/2011/9.pdf Browsed on 8th April, 2015
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