|Vice-President Taha at the United Nation Sept. 27, 2010 |
UN Photo/Aliza Eliazarov
Besides the political implications of this demand, there are two very important legal reasons why Vice President Taha’s request cannot be fulfilled. First of all, the UN Security Council Resolution 1593, which referred the situation in Darfur to the ICC, requires all parties to the Darfur conflict, including the Government of Sudan, to cooperate fully with Court. This resolution is binding on all UN member states. The Member States could not condemn the prosecution of al-Bashir without coming under direct violation of 1593.
Secondly, the General Assembly has no authority to make decisions regarding the status of arrest warrants. The primary authority to withdraw arrest warrants rest with the Court. Section 58(4) of the Rome Statue states that “the warrant of arrest shall remain in effect until otherwise ordered by the Court”. Nevertheless, this is not the only way to defer proceedings. Article 16 of the Rome Statue says that the Security Council may defer investigations and prosecutions for renewable 12 –month periods if there is a threat to international peace and security. The Court recognizes that its role in political questions is limited and it must respect a deferral in this case. However, it is interesting to note that the Security Council has not made an article 16 deferment before despite earlier informal requests.
In addition, the political backlash against the Sudanese government has been intense. Omer Ismail, senior policy advisor for the Enough Project, an advocacy organization set up to highlight Darfur crisis, has called Khartoum’s recent move nothing more than “political blackmail”. Mr. Ismail further explained that “there are over half a million people killed and seven million people living in warehouses. This government is doing this for political reasons. It has nothing to do with reconciliation.” Mr. Ismail finds no reason to believe that Sudan will take any reformative action in Darfur.
There continues to be a substantial amount of rhetorical support for Sudan (and all other vital parties) to cooperate with the ICC. If things continue as they have been for the last several years, there is little chance that the Sudanese government will be able to dissuade the international community from pursuing those responsible for the genocide in Darfur on either a political or legal level