The International Criminal Court and Sudan

The International Criminal Court (ICC) [1] was set up at an international conference in Rome in July 1998, which approved the Statute specifying how the Court was to function. Its jurisdiction commenced on 1 July 2002, after 60 states had signed and ratified what has become known as the Rome Statute. Today, 106 states have ratified it [2].

States that have not become party to the Statute include the US, Russia, China, Israel, Iraq, Sudan and Zimbabwe. The UK is a party to the Statute, as are all other EU states, apart from the Czech Republic.

Crimes the ICC can prosecute

The ICC may, in certain circumstances, prosecute individuals (not states) for (a) genocide, (b) war crimes, and/or (c) crimes against humanity, as defined in Articles 6, 7 and 8 of the Statute [3].

The Statue also mentions “the crime of aggression”, but the founding conference couldn’t agree on a definition. Article 5 says:

“The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted … defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.”

It would be nice to see a future Tony Blair prosecuted by the ICC for the crime of aggression, but it isn’t going to happen. Britain and the other permanent members of the Security Council, which are immune from sanction by the Security Council for aggression, are not going to make their leaders liable for prosecution for aggression at the ICC.

ICC jurisdiction

The ICC has jurisdiction in respect of genocide, war crimes and crimes against humanity, committed in the territories of states that are party to the Statute, or by nationals of states that are party to the Statute. However, the primary duty for prosecuting these crimes lies with the state in which they were committed – and the ICC only acquires jurisdiction to prosecute them if the state fails to prosecute them. In principle, the ICC can prosecute any individual responsible for these crimes, regardless of his/her civilian or military status or official position.

This means that, in theory, a national of a state that is not party to the Statute, for example, a US national, may be tried by the ICC for crimes committed in a state that is a party to the Statute. The US is particularly opposed to this, since it has civilian and military personnel in many states around the world, many of which are party to the Statute. It is US policy to prevent the ICC trying any US nationals.

To enforce this, in 2002 the US tried to persuade the Security Council to act to make UN peacekeepers, including US nationals, immune from ICC prosecution. On 30 June 2002, having failed to get its way, the US vetoed the renewal of the mandate of a UN peacekeeping operation in Bosnia. This became an issue for the US, because Bosnia ratified the Rome Statute on 11 April 2002. In vetoing the resolution the US ambassador to the UN, John Negroponte, made it clear that the US

“does not and will not accept the jurisdiction of the ICC over the peacekeepers that it contributes to operations established and authorized by the United Nations” [4].

A temporary solution was found by passing resolution 1422 [5] on 12 July 2002, which used the provisions in Article 16 of the Rome Statute empowering the Security Council to defer ICC investigations for a year, and then another year (see below). Paragraph 1 of the resolution stated:

“[The Security Council] Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise;”

In that way, the possibility of ICC investigation of US nationals acting as UN peacekeepers was, in theory, put off for a year. In fact, the matter was never put to the test. And the provisions of 1422 were never renewed.

In the meantime, the US set about making agreements with (or forced agreements upon?) states that are parties to the Statute, in which these states undertook not to surrender any US national to the ICC [6]. In theory, this was a general protection for US nationals, whereas, at best, resolution 1422 merely protected US nationals who were serving as UN peacekeepers. To date, the US has made over 100 of these agreements.

The US takes the view that the existence of these agreements exempts states parties to the Rome Statute from their duty to surrender individuals to the ICC. Article 98.2 states:

“The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.”

Hence, these agreements are referred to as Article 98 agreements.

ICC not an independent judicial body

Sudan is not a party to the Rome Statute, so how did the ICC acquire the jurisdiction to prosecute the Sudanese President, Omar Hassan al-Bashir (and, prior to that, two other Sudanese nationals)?

The answer lies in Article 13(b) of the Statute, which states that the ICC may exercise jurisdiction in respect of genocide, war crimes and crimes against humanity 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;”

So, the ICC is not an independent judicial body, the jurisdiction of which states can choose to reject, as the US has done. On the contrary, its jurisdiction can be extended by the Security Council to apply to states that have chosen to reject its jurisdiction.

Of course, this cannot happen to veto-wielding members of the Security Council, who have chosen not to become a party to the Statute – since they can wield their veto to block any attempt by the Security Council to extend the ICC’s jurisdiction to their territory. So, China, Russia and the US, which have chosen not to ratify the Statute, will never have ICC jurisdiction extended to their territories.

And neither will Israel, since the US can be relied upon to use its veto to block it.

A Court with universal jurisdiction is fair. A Court, the jurisdiction of which states can choose to accept, has a semblance of fairness. But a Court, like the ICC, the jurisdiction of which can be extended by the Security Council to some states that have chosen not to accept its jurisdiction but not to others, is grossly unfair.

Security Council refers Darfur to ICC

On 31 March 2005, the Security Council passed Chapter VII resolution 1593 [7], sponsored by the UK, which extended the jurisdiction of the ICC into Sudan. In Paragraphs 1 and 2, it decided

“to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court;”

and ordered the Government of Sudan to cooperate with the ICC, even though it isn’t a party to the Rome Statute.

But Paragraph 5 emphasised:

“the need to promote healing and reconciliation and encourages in this respect the creation of institutions, involving all sectors of Sudanese society, such as truth and/or reconciliation commissions, in order to complement judicial processes and thereby reinforce the efforts to restore long-lasting peace, with African Union and international support as necessary;”

Institutions such as truth and/or reconciliation commissions involve drawing a line under the past and dispensing with formal judicial processes in respect of past activity that was unquestionably illegal. As such, their operation is incompatible with that of the ICC, which is duty bound to prosecute individuals in accordance with the Rome Statute, and cannot exempt individuals from prosecution, even if it was probable that prosecuting them would inhibit “healing and reconciliation”, or lead to further loss of life.

Lords Resistance Army

Here, it is worth recalling the ICC’s involvement in the conflict in northern Uganda, where the Lords Resistance Army (LRA) was in rebellion (see, for example, a account in Time on 10 November 2007 [8]). In this instance, the Ugandan government requested the ICC to intervene and in July 2005 it issued warrants for 5 LRA leaders (Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen) on charges of war crimes and crimes against humanity. None of them has been arrested.

Later, when attempts to broker a political settlement got under way, the existence of these charges became stumbling blocks toward an agreement, the LRA leaders naturally insisting that the charges be dropped as a condition for entering into an agreement. The Ugandan government has asked the ICC to drop the charges so that an agreement can be made, but there is no provision in the Rome Statute to allow the ICC to drop them, understandably so.

This illustrates the incompatibility between the application of a formal judicial process and a political process in attempting to resolve a conflict.

China speaks

Resolution 1593 was passed by 11 votes (Argentina, Benin, Denmark, France, Greece, Japan, Philippines, Romania, Russia, Tanzania and the UK) to 0 with 4 abstentions (Algeria, Brazil, China and the US).

China’s objections were pragmatic, namely, that it would interfere with efforts to reach a political settlement. After the vote, the Chinese Ambassador to the UN, Wang Guangya, told the Security Council:

“We are not in favour of referring the question of Darfur to the International Criminal Court (ICC) without the consent of the Sudanese Government, because we are afraid that that would not only severely complicate efforts to secure an early settlement of the Darfur issue, but also have unforeseeable consequences for the north-south peace process in the Sudan.” [9]

Now the Sudanese president has been charged by the ICC, many people are wishing that China’s view had prevailed in the Security Council.

China’s ambassador also said:

“We cannot accept any exercise of the ICC’s jurisdiction against the will of non-State parties, and we would find it difficult to endorse any Security Council authorization of such an exercise of jurisdiction by the ICC.”

However, China didn’t use its veto to prevent the ICC’s jurisdiction being extended into Sudanese territory against the wishes of Sudan (and neither did Russia, which voted for the resolution). Today, now that China is asserting itself in the world, things might be different.

US speaks

The US Deputy Ambassador, Anne Patterson, told the Security Council:

“The United States continues to fundamentally object to the view that the ICC should be able to exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute. That strikes at the essence of the nature of sovereignty. Because of our concerns, we do not agree to a Security Council referral of the situation in Darfur to the ICC and abstained in the voting on today’s resolution.” [9]

That makes a case for vetoing the resolution, rather than abstaining. Anne Patterson continued:

“We decided not to oppose the resolution because of the need for the international community to work together in order to end the climate of impunity in the Sudan and because the resolution provides protection from investigation or prosecution for United States nationals and members of the armed forces of non-State parties.”

This protection for nationals of states, including the US, that are not parties to the Rome Statute is provided in Paragraph 6 of the resolution, which says that they cannot be prosecuted by the ICC without the consent of the states of which they are nationals. Paragraph 6 says:

“[The Security Council] Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State;”

Later, Anne Patterson said:

“We believe that, in the future, absent consent of the State involved, any investigations or prosecutions of nationals of non-party States should come only pursuant to a decision by the Security Council.”

This is significantly different to the position she stated earlier, namely, that the US is opposed to the ICC being “able to exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute”.

Of course, in the particular case of US nationals, the two positions are identical since the US is in a position to veto any attempt to refer a situation to the ICC, if it carries with it any possibility of US nationals being prosecuted. Once the protection for US nationals provided in Paragraph 6 was in place, the US didn’t need to use its veto. At that point, the US was content to see the ICC exercise jurisdiction over the nationals of Sudan, even though Sudan is, like the US, not party to the Rome Statute. As ever, there’s one rule for veto-wielding states, and another for the rest.

Darfur cases

As a result of resolution 1593, the ICC Prosecutor, Luis Moreno-Ocampo, presented cases against Ahmad Harun (a minister in the Sudanese Government) and Ali Kushayb to the Pre-Trial Court of the ICC, accusing them of war crimes and crimes against humanity in Darfur. The Court issued warrants for their arrest on these charges on 17 April 2007. Neither has been arrested.

And on 14 July 2008, Luis Moreno-Ocampo accused President al-Bashir with genocide, as well as war crimes and crimes against humanity. It will be up to the Pre-Trial Court to decide whether to issue a warrant for his arrest on any or all of these crimes. Needless to say, even if a warrant is issued, it is extremely unlikely that President al-Bashir will ever be arrested and appear before the ICC. He will avoid arrest by refraining from travelling abroad.

Moreno-Ocampo had the option of making a “sealed” request to the Pre-Trial Court for a “sealed” arrest warrant, to be made public only when President al-Bashir travelled abroad. That way there was some chance of President Bashir appearing before the ICC. Making the application in public has ensured that he will probably never appear before the ICC.

A prosecutor that chooses to act in such a way as to make it extremely unlikely that his prosecution will succeed, instead of in a way that it has a chance of succeeding, is not in the business of prosecution. He’s in the business of puffing himself up. The only rational explanation for Luis Moreno-Ocampo’s behaviour is that he wanted to be the first prosecutor to accuse a sitting head of state of the “crime of crimes”, that is, genocide. Although in September 2004 the US officially described what happened in Darfur as “genocide” [10], few people believe that genocide as defined in the Rome Statute took place in Darfur and that there is a chance of convicting anybody of genocide. But, first of all, the accused has to be brought to court, and that is very unlikely.

Will the Security Council intervene?

It remains to be seen if the Pre-Trial Court grants Luis Moreno-Ocampo’s request for a warrant for the President al-Bashir’s arrest, and, if so, on what charges. It also remains to be seen whether the attempt to bring this prosecution makes it more difficult to reach some kind of settlement with regard to Darfur, as has been done with southern Sudan.

Interesting questions will arise for Western diplomats, if a warrant is issued for the President’s arrest, for example, will they be prepared to deal politically with a person who is wanted by the ICC, or with any member of his government?

Even if a warrant is issued, it is still possible for the Security Council to put the whole thing on the long finger (though it cannot make the ICC drop the charges). Article 16 of the Rome Statute gives it the power to do so. It states:

“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”

So, the Security Council could defer the prosecution for a year, and then another year, and so on. Admittedly, the Council will look a bit foolish doing that, since it referred the situation in Darfur to the ICC in the first place – and President al-Bashir would continue to be a wanted man.

Strangely, it seems as if the US is in favour of constant interference by the Security Council in the process. Speaking to the Council when the reference to the ICC was made, Anne Patterson remarked:

“Consistent with our long-standing views about the appropriate role of the Security Council, we expect that, by having the Security Council refer the situation in Darfur to the ICC, firm political oversight of the process will be exercised. The Council’s action today plays an important role in that regard. We expect that the Council will continue to exercise such oversight as investigations and prosecutions pursuant to the referral proceed.”

It remains to be seen if the Council exercise this “oversight” to the extent of deferring the prosecution indefinitely.

David Morrison

20 July 2008

References:

[1] www.icc-cpi.int/

[2] www.icc-cpi.int/asp/statesparties.html

[3] www.icc-cpi.int/library/about/officialjournal/Rome_Statute_120704-EN.pdf

[4] www.david-morrison.org.uk/scps/20020630.pdf

[5] www.david-morrison.org.uk/scrs/2002-1422.pdf

[6] www.state.gov/t/pm/art98/

[7] www.david-morrison.org.uk/scrs/2005-1593.pdf

[8] www.time.com/time/world/article/0,8599,1682747,00.html

[9] www.david-morrison.org.uk/scps/20050331.pdf

[10] www.washingtonpost.com/wp-dyn/articles/A8364-2004Sep9.html