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The ICC's Darfur Investigation

The ICC's Darfur Investigation

Apr-20-08 01:52 pm

http://africa.reuters.com/newsimages/2007/08/07/tn_2007-08-07T111223Z_01_NOOTR_RTRIDSP_2_OZATP-SUDAN-DARFUR-ICC-20070807.jpg

Ahmad Muhammad Harun

Ahmad Muhammad Harun (commonly known as Ahmad Harun) is the Minister of State for Humanitarian Affairs of Sudan. From 2003-2005, he was Sudanese Minister of State for the Interior, and as such, was in charge of the "Darfur Security Desk". In this capacity, he coordinated the different bodies of the government involved in the counter-insurgency, including the police, the armed forces, and the National Security and Intelligence Service. Essentially, he was in charge of recruiting, financing and coordinating the Janjaweed militia, which systematically conducted brutal attacks against the civilian population in Darfur. Today, as Minister for Humanitarian Affairs, he directs the refugee camps where the 2.5 million Darfurians that have been displaced by the violence live. He has also been appointed to investigate human rights abuses in Sudan, as well as coordinate the deployment of UNAMID (African Union/United Nations Hybrid Mission in Darfur).

On March 31st 2005 the United Nations Security Council determined that the situation in Sudan constituted a threat to international peace and security. Acting under Chapter VII of the UN Charter, the Security Council adopted Resolution 1593, referring the situation in Darfur to the Prosecutor of the International Criminal Court (ICC). In accordance with the Rome Statute, the Prosecution conducted an analysis of the situation and opened an investigation on June 1st 2005.

After 20 months of thorough and impartial investigation within the jurisdiction of the ICC, the Prosecution concluded there were reasonable grounds to believe that Ahmad Harun and Ali Muhammad Ali Abd-Al-Rahman (better-known in West Darfur as Ali Kushayb), a Janjaweed militia leader, bear criminal responsibility in relation to 51 counts of alleged crimes against humanity and war crimes, including persecution, torture, murder and rape committed in Darfur in 2003 and 2004.

On April 27th 2007, after reviewing the results of the Prosecution's investigation, judges at the International Criminal Court issued arrest warrants for both Ahmad Harun and Ali Kushayb, for war crimes and crimes against humanity. This was an important step taken by the international community in holding perpetrators of the violence in Darfur accountable for their crimes. However, one year later, both Harun and Kushayb remain at large. The government of Sudan has taken no action to comply with the arrest warrants. In March 2007, the Sudanese government announced suspension of all cooperation with the ICC and has publicly refused to surrender either Ali Kushayb or Ahmad Harun to the Court.

Is Sudan legally obligated to comply with the ICC?

When the ICC issued the warrants, it also issued requests to the government of Sudan and to all states parties of the Rome Statute of the ICC for the arrest and surrender of Ahmad Harun and Ali Kushayb. The United Nations Security Council members that are not states parties to the Rome Statute (such as the United States) and other countries such as Egypt, Eritrea, Ethiopia and Libya also received the request.

However, an important caveat is that Sudan has not ratified the Rome Statute. According to Article 12 of the Statute, for the Court to exercise its jurisdiction, "the territorial State (the State on whose territory the situation which is being investigated has taken or is taking place), or the State of nationality (the State whose nationality is possessed by the person who is being investigated) must be a party to the Statute." For this reason, one could make the reasonable argument that Sudan is not legally obligated to comply with the ICC requests, or to cooperate in arresting Harun and Kushayb.

Nevertheless, UN Security Council Resolution 1593 requires Sudan to cooperate fully with the Court and provide any necessary assistance to it and its Prosecutor:

Acting under Chapter VII of the Charter of the United Nations, [the UN Security Council] Decides that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully.

So one could also reasonably argue that the resolution does in fact hold Sudan legally obligated to comply with the requests. However, Sudan's recalcitrance demonstrates that it does not see itself obligated in this way. It is important to note the position held by the United States with respect to Resolution 1593. Anne Woods Patterson, for the United States,

….continued to fundamentally object to the view that the Court should be able to exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute. Because it did not agree to a Council referral of the situation in Darfur to the Court, her country had abstained on the vote. She 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 provided protection from investigation or prosecution for United States nationals and members of the armed forces of non-State parties.

The United States was and would be an important contributor to the peacekeeping and related humanitarian efforts in the Sudan, she said. The language providing protection for the United States and other contributing States was precedent-setting, as it clearly acknowledged the concerns of States not party to the Rome Statute and recognized that persons from those States should not be vulnerable to investigation or prosecution by the Court, absent consent by those States or a referral by the Council.

This ICC case is a particularly useful example of how international law is limited in addressing human rights abuses. It showcases the tensions that still exist in the international legal system with respect to jurisdiction and state sovereignty. One could conclude that Sudan's lack of compliance might, at least in part, be due to the United States' lukewarm stance on the resolution and its hesitance to agree that the ICC can exert jurisdiction on Sudanese nationals. In a make believe, Kissinger-less world, in which the United States had ratified the Rome Statute, it would be interesting to see how Sudan would respond to greater pressure from the US to hand over Harun and Kushayb.

Posted by Mia Cambronero

Tags: International Criminal Court genocide human right

About the editor:

Anthony Clark Arend

Professor

Commentary and analysis at the intersection of international law and politics.

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