Centre for Human Rights and Democracy in Africa



Sudan Obliged To Cooperate With ICC Arrest Warrant

Monday, March 09, 2009

On Wednesday, March 4, 2009, the International Criminal Court, ICC, issued its first-ever warrant against a sitting head of state - President Omar Hassan al-Bashir of Sudan for war crimes and crimes against humanity perpetuated in the conflict-riddled Darfur region. The warrant, which accuses Bashir of being personally responsible for "directing attacks against the civilian population" of Darfur and "murdering, raping, and forcibly displacing millions of civilians," could be traceable to UN Security Council Resolution 1593 of 2005.

The warrant charges Mr. Bashir with five counts of crimes against humanity - murder, extermination, forcible transfer, torture, and rape, and two counts of war crimes - intentionally directing attacks against a civilian population, and pillaging. It does not, however, accuse Bashir of genocide, but as the Registrar of the Court stated: the court will consider that charge if additional information from the prosecutors becomes available.

These alleged crimes took place during a five-year campaign against rebel organisations in Darfur. The UN estimates some 300,000 people have died and millions been displaced in six years of conflict in Darfur.

The Darfur crisis, which began in 2003, was initially resource driven until the Bashir government interfered with its arming of Arab militias (janjaweeds) and thus exacerbating and inflaming tensions in the region. The government thus, transformed a largely environmental-driven resource competition into large-scale violent confrontation tinged with serious racial and ethnicovertones.

It is a truism that as a general principle, the conduct of private persons or entities is not attributable to the State. Circumstances may arise, however, where such conduct is nevertheless attributable to the State because of the existence of a specific factual relationship between the person and entity engaging in the conduct and the State.

This is expressly stated in article 8 of the International Law Commission Draft Articles on Responsibility of States for International Wrongful Acts. Whilst there is no unanimity as to whether or not the situation in Darfur amounts to genocide, there is no such divergent opinion amongst scholars and the general public as to war crimes and crimes against humanity.

The systematic killing of civilians, torture, enforced disappearance, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement throughout Darfur, clearly shows that crimes against humanity and large scale war crimes were and are still being committed.

In spite of the gruesome nature of these crimes, some supporters of Bashir have argued that the ICC does not have jurisdiction over Bashir since Sudan is a non-State Party. This position is a fallacy as Article 13 of the Rome Statute provides the basis of the jurisdiction of the ICC in cases of non-state parties.

The complex issue which arises with executing the warrant is whether or not Sudan is obliged to cooperate with the Court in executing the warrant. The fact that Sudan has signed but not ratified the Rome Statute makes it incumbent on her to refrain from "acts which could defeat the object and purpose" of the Statute.

However, as a treaty-based obligation, it is not binding upon third states unless they have agreed to cooperate with the Court by way of a declaration of acceptance of the jurisdiction of the Court or an ad hoc arrangement or agreement with the Court. It is a general rule of treaty that non-state parties to a treaty are not bound by the treaty. This is stated in the Vienna Convention on the Law of Treaties and also reflected in the Latin phrase pacta tertiis nec nocent nec prosunt.

On the other hand, a cursory look at the nature of the crimes that fall within the jurisdiction of the ICC in Article 5 includes crimes against humanity and war crimes. These are crimes which State Parties to the Geneva Convention of 1949 which includes Sudan, agree to undertake the obligation "to ensure respect." Moreover, the obligation to respect and to ensure international humanitarian law as was stated by the International Court of Justice in the Nicaragua Case is an obligation of general international law.

In order to respect and to ensure respect for international humanitarian law, all State Parties to the Conventions such as Sudan, which are not parties to the Rome Statute, must be ready to cooperate, in conformity with Article 88 (1) of the First Additional Protocol of 1977. Furthermore, the dispositive part of Resolution 1593 expressly urges all States, whether party or not to the Rome Statute, as well as international and regional organisations to "cooperate fully" with the Court.

According to the Resolution and articles 25 and 103 of the UN Charter, the obligation of the Government of Sudan to fully cooperate with the Court prevails over any other international obligation that the Government of Sudan may have undertaken pursuant to any other international agreement.

While acknowledging the importance of the warrant, the writer questions why all the cases currently at the ICC are all from Africa; weak States without much international weight. No one argues that these cases do not deserve to be brought to the ICC, but it is very strange and coincidental that all of them are minor players.

The ICC is not an African Court but an International Court with the world as its territorial jurisdiction. Failure to prosecute egregious crimes committed in other parts of the world will lead skeptics, especially in Africa, to conclude that the prosecution by the court is an extension of neo-colonialism. The ICC should, therefore, consider other regions wherein such heinous crimes are being committed. Colombia is a case in point; after all, the ICC prosecutor is on record as stating that he has information indicating that war crimes and crimes against humanity have been committed in Colombia.

Barrister Agbor-Balla
Executive Director for Centre for Human Rights and Democracy in Africa

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