Sudan at the UN: Aid for Amnesty

Vice-President Taha at the United Nation Sept. 27, 2010  
UN Photo/Aliza Eliazarov

On September 27 2010, Sudanese Vice-President, Ali Osman Taha, took the floor at the United Nations to urge the General Assembly to reject the ICC arrest warrants that are currently against President Omar al-Bashir. VP Taha claimed that ICC involvement is “a direct threat” to the peace process in Darfur and that Khartoum will further pledged $2 billion dollars to reconstruction in the region if the charges are dropped. This is not the first time that the Vice President has tried to convince the international community to withdraw the warrants against al-Bashir. In 2008 he made a plea to the United Nations Security Council to indefinitely suspend the first warrant.

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

Symposium on International Criminal Justice at the University of Minnesota Highlights the Importance of the International Criminal Court

By Duane W. Krohnke

On September 28, 2010 the University of Minnesota Law School hosted a Symposium: International Wrongs, International Rights: The Use of Criminal Law To Protect Human Rights. The international Criminal Court was the focus of remarks by Luis Moreno-Ocampo, the Prosecutor of the Court, and Duane W. Krohnke, the Provisional Organizer of the Minnesota Alliance for the ICC. More general comments about criminal prosecutions of human rights abusers were made by Kathryn Sikkink, Arleen C. Carlson Professor of Political Science and Professor of Law at the University of Minnesota.

Prosecutor Moreno-Ocampo noted that 139 countries had signed the Rome Statute, which is the treaty that created the ICC, and that 113 countries had ratified that treaty and become States Parties for the Court. This constituted, he said, a global confederation to fight the crimes that were of the greatest concern to the international community.

The U.S., on the other hand, he observed, is not such a party, and it has been difficult for the U.S. to accept the idea of such a court. Nevertheless, the George W. Bush Administration supported the Court over the Darfur situation in the Sudan.

In contrast, countries like Costa Rica, which does not have a military, find that the ICC is in their national interest because it helps to protect them against the most outrageous crimes.



When he was chosen as the ICC's Prosecutor in 2003, he told its judges that the best situation for the Court would be to have no cases. That would mean that there were no such serious crimes in the world or that national courts by themselves were addressing these crimes.

Moreno-Ocampo reviewed the Court's current investigations and cases. With respect to the Lubanga case from the Democratic Republic of the Congo, he reported that the trial was now on hold due to the Prosecutor's appeal of the Trial Chamber's order staying the case over the Prosecutor's failure to identify his intermediary in the Congo in accordance with the Chamber's orders. The Prosecutor already has indicated his ability and willingness to provide the necessary identification, and he felt confident that the Appeals Chamber would allow the trial to go forward.

Mr. Krohnke highlighted his paper, The International Criminal Court and the U.S.A.: Engaged, But Not Yet Married. That paper outlined the Prosecutor's powers and duties under the Rome Statute, and he added that the public transparency of the Prosecutor and other organs of the Court through its website was extraordinary.

The most controversial ICC case, according to Krohnke, is the one against Sudanese President Bashir, where we were still awaiting his arrest and delivery to the Court at the Hague and finding out if the U.N. Security Council would exercise its power to defer the case for a year. Just last week, Krohnke said, an African diplomat reiterated the African Union's request for such a deferral. Krohnke also talked about the stay of the Lubanga trial over the issue of the propriety of the Prosecutor's failure to disclose the identity of an intermediary in the Democratic Republic of the Congo. The latter was good news and bad news for the supporters of the Court. On the plus side, it demonstrated the controls over the Prosecutor and the Court's concerns for the due process rights of the accuseds. On the other hand, it raised serious questions about the Prosecutor's judgment and the viability of the Court's very first trial.

Krohnke reported that the Court recently held its important Review Conference that adopted amendments to the Rome Statute regarding the use of certain weapons as war crimes for non-international armed conflicts and creating a definition and procedures for the crime of aggression. The Conference also declined to amend Article 124 that allows a new member to opt out for seven years of ICC jurisdiction over war crimes. They also evaluated the performance of the Court to date and made plans and commitments for its future.

The U.S. relationship with the Court was also reviewed by Krohnke. Although the Clinton Administration was a major player at the Rome Conference that produced the Rome Statute, the U.S. and six other countries did not sign the treaty at the end of the Conference. However, on December 31, 2000, President Clinton did so because the U.S. supported international accountability for the perpetrators of the crimes covered by the ICC and because the U.S. wanted to help the ICC become an instrument of effective and impartial justice. This act, the President said, did not abandon U.S. concerns over the treaty, especially its jurisdiction over nationals of states that were not parties to the treaty. Therefore, President Clinton concluded, he would not submit the treaty to the U.S. Senate for advice and consent.

Nor did President George W. Bush submit the treaty to the Senate. In fact, in May 2002, his Administration "unsigned" the treaty by advising the U.N. Secretary-General that the U.S. did not intend to ratify the treaty. This was part of a general campaign against the ICC by the Bush Administration although in its last four years, it supported the Court's involvement in the Sudan/Darfur situation.

The Obama Administration, Krohnke continued, had turned the page and now was actively engaged as an observer with the ICC. The U.S. had attended meetings of the Court's Assembly of States Parties in November 2009 and January 2010 as well as the Review Conference in May/June of this year. In fact, U.S. participation in that Conference was a major factor in the adoption of the amendment on the crime of aggression with provisions that would prevent the amendment from ever being applied to the U.S.

However, Krohnke said, the Obama Administraton will not be submitting the Rome Statute to the U.S. Senate for advice and consent. Nor was there any indication that the current Administration would rescind the May 2002 U.S. letter to the Secretary-General indicating the U.S. did not intend to ratify the treaty.

Although the U.S. had some criminal statutes on the crimes covered by the ICC, the U.S. statutes were narrower than the latter. Thus, Krohnke observed, the U.S. theoretically might not be able to preempt any unlikely ICC action against U.S. nationals by commencing criminal cases in the U.S. courts.

Krohnke added that U.S. federal courts already were using the Rome Statute to determine the status of international law on certain issues. The most significant such cases involved determining the scope of crimes against humanity, aiding and abetting human rights abuses and corporate liability for such aiding and abetting.

In conclusion, Krohnke said the ICC already had demonstrated that it is an important actor in the interactive global struggle against impunity for the worst offenders of human rights. The U.S.' current active engagement with the ICC is a great development. U.S. civil society needed to be involved in pressing for U.S. ratification of the Rome Statute. Just this month, he reported, the Minnesota State Bar Association had adopted a resolution calling for the U.S. to take steps toward such ratification by expanding and broadening U.S. interaction with the ICC.

AMICC stood ready, Krohnke said, to welcome new NGO members and observers. It also needed financial support from such organizations and individuals.

Professor Sikkink highlighted some of the findings from her empirical research that is the subject of her forthcoming book, The Justice Cascade: Human Rights Prosecutions in World Politics. Such criminal prosecutions (or truth commissions) are crucial to the successful promotion of human rights, but not by themselves. They need to be combined with partial amnesties.

Other Symposium panels addressed Transitional Justice and The Modern Face of International Human Rights.

The Symposium was organized by the University of Minnesota Law School's Law & Inequality: A Journal of Theory and Practice, which examines the social impact of law on disadvantaged people. The archived video webcast of the Symposium is available at http://www.law.umn.edu/lawineq/symposiummain/september-2010-agenda. In addition, some of the Symposium papers will be published in the Journal.

ICC in the Media, Update #7

This week all eyes continue to be on Kenya as the investigation progresses. MP Mutula Kilonzo's comments opposing the ICC's involvement have now been rejected both domestically and internationally. Kilonzo has publicly attempted to clarify his position, saying he intended his support for local tribunals to encourage their formation in conjunction with the ICC, not as a replacement. ICC Prosecutor Luis Moreno-Ocampo has stated that Kilonzo reaffirmed his commitment to the investigation, and has made clear that it will continue as planned. In continuing the investigation the Office of the Prosecutor has begun collecting sensitive information from the Kenyan government's security meetings during the post-election violence. Although it possesses copies of the minutes, it has been met with opposition from security officials in trying to obtain originals. Security chiefs have refused to give statements to the Prosecutor and the government has refused to provide the original minutes from potentially crucial meetings. The ICC requires originals for the documents to be admissible as evidence; however, Kenya is hesitant to release them because the minutes include information unrelated to the investigation involving sovereignty and national security issues. The following video addresses the situation:

Some have come forward suggesting that this refusal is an example of top officials attempting to sabotage the investigation. It has been reported that they are also trying to sabotage the ICC's involvement by insinuating that the Court has targeted ethnic groups. On Friday a number of MPs from the Party of National Unity (PNU) stated that the ICC investigations had unfairly targeted the Kikuyu ethnic group as the perpetrators of the post-election violence. These remarks have subsequently been recognized as 'hollow', and have been called 'irresponsible' in light of the ethnic component of the post-election crimes.

In other news, Judge Richard Goldstone has publicly stated that the often invoked criticism that the ICC targets Africa is 'unfair'. He argued that the ICC is a court of last resort that is often self-referred by African states, which creates an unfair perception that the ICC picks on Africa. Photo credit: Daily Nation.

ICC in the Media, Update #6

This week the media has remained focused on the investigation in Kenya, particularly in light of Mutula Kilonzo's (a powerful government MP) recent remarks opposing the ICC's involvement. Kilonzo's comments have forced the international community to again question Kenya's support of the ICC investigation, which was doubted only a month ago by Kenya's failure to arrest Omar al-Bashir. This loyalty has been further called into question by a Mombasa man who has brought suit in a Kenyan court alleging that the ICC probe is inconsistent with the newly adopted constitution. The details of Kilonzo's actions as well as the court proceedings have been summarized by NTV Kenya in the following clip:

In the face of this opposition, several prominent Kenyan MPs have stood up for the ICC's involvement in the region, and have publicly accused Kilonzo of trying to "derail" the justice process. In addition, a recently released poll documents that the majority (54%) of Kenyans are in favor of an ICC trial, with the remainder split between forgiveness and use of local tribunals. Local media has been saturated with criticisms of those opposing the ICC investigations, claiming that they are trying to sabotage Kenya's new start and they underestimate the power of the ICC in preventing future election violence.

The ICC has also responded to Kilonzo's statements, with Chief Prosecutor Ocampo stating that he is confident that Kenya will cooperate with the investigation, and that Mr. Kilonzo himself has reaffirmed his commitment to the ICC. The Office of the Prosecutor will be relying on this cooperation while its detectives perform investigations in Kenya from September 27 - 29, 2010. Photo credit: Daily Nation.

ICC in the Media, Update #5

As we mentioned last week, the ICC recently opened an office in Kenya to facilitate its ongoing investigation into the 2007-8 post-election violence. Although only two weeks have passed since this show of support for the ICC, a prominent member of Kenya's government has spoken out against continuing to support the ICC case. Kenya's Justice and Constitutional Affairs Minister Mutula Kilonzo has publicly stated that, in light of the new constitution, the ICC should "keep off" Kenya. He has argued that the new constitution provides for a new police and judiciary, which would be capable of serving justice for the election violence domestically. However, many have come forward criticizing Kilonzo's statements. Some say that the reforms Mutula is relying on will take at least several years to implement, and this is unacceptable to the victims who have been waiting years for justice. Others reply that Kenya is bound to cooperate with the ICC due to its status as a state party, which it must respect. Lobby groups have responded that Kilonzo's stance is a "betrayal of Kenya's commitment to end impunity for human rights atrocities." Others wonder whether such institutions, when formed, would be credible enough to prosecute those responsible.

In other news, on September 17, 2010 the Arab League backed the African Union's resolution not to comply with the ICC arrest warrant against Omar al-Bashir of Sudan. The ICC and international community haver yet to comment on this development. Photo Credit: Daily Nation.

ICC in the Media, Update #4

The ICC has received less coverage in the media this week in comparison with recent weeks describing the Bashir in Kenya incident. However, the event is still generating media attention, primarily concerned with the consequences of Kenya's choice to ignore its ICC duties. Some, such as the Institute for Democracy & Leadership in East Africa (IDEA) have criticized Kenya's choice domestically, saying that the invitation compromised Kenya's commitment to justice, rule of law, and democracy. Other criticisms have come internationally, such as from the EU Parliament, who has censured Kenya for its actions and plans to ensure the item is fully addressed at the upcoming Tripoli Summit. In other news, the ICC has begun distributing ICC educational materials in Kenya to aid the new office approved last week dedicated to the on-going investigation into the 2007-2007 post-election violence. 200,000 booklets entitled "Understanding the ICC" have reportedly been distributed through a popular newspaper, and are hoped to provide answers to questions Kenyans may have about the investigation and the ICC. The witnesses gathered throughout the investigation, reportedly comprised of 320 individuals and 76 communities, are said to be supportive of a speedy and complete investigation, including inquiry into the roles of President Kibaki and Prime Minister Odinga in the violence. Although this move is outlined within the Waki Report, it is unclear whether the Office of the Prosecutor has investigated these figures yet.

ICC in the Media, Update #3

Last week Kenya refused to honor its commitment to the ICC by failing to arrest Bashir, causing international confusion and concern over Kenya's stance on the Court. However, recently Kenya has restated its desire to support and cooperate with the ICC in what is being characterized as an attempt to absolve itself for the Bashir incident. On Friday, September 3 Kenya agreed to let the International Criminal Court set up office within the country to facilitate the on-going investigation into the 2007-2008 post-election violence. The new office, confirmed during the Registrar's recent visit to Kenya, will allow the Office of the Prosecutor to identify perpetrators, collect evidence, and interview witnesses while enjoying logistical support, immunity, enhanced security and victim and witness protection programs. Although many political officials are supportive of the ICC's investigation, others are against it or are concerned about who may be implicated by the Prosecutor. Ocampo, set to finish the investigation by the end of this year, has reportedly collected 396 witnesses prepared to testify at the Hague against potential perpetrators. Amidst these developments the U.S. has spoken out in support of Kenya's cooperation with the ICC in seeking justice for the 2007-2008 post-election violence.

After Refusing to Arrest Bashir, What's Next for Kenya?

In light of Kenya’s unwillingness to arrest Omar al-Bashir, president of Sudan, who is wanted by the ICC and visited Nairobi last week, Pre-Trial Chamber I notified the UN Security Council and the ICC Assembly of States Parties (ASP) of Kenya’s failure to cooperate and asked them to “take any measures they may deem appropriate." Earlier this year the African Union called on its members to refuse to comply with the ICC. Kenya has claimed that their failure to cooperate stems from these AU obligations and a need to keep to keep the peace.

President Omar al-Bashier attending ceremonies in Kenya last Friday.
(Photo by AFP)

This situation has ultimately become a question of competing obligations. Is Kenya bound by AU, UN, or Rome Statue obligations?

There is a common belief among international legal scholars that there is a hierarchy to international obligations. The UN Charter tops the list, with regional economic partnerships falling somewhere near the bottom. Many would agree that Kenya’s first international obligation is to the UN Charter, then to the Rome Statute, and finally to their AU partnership. Taking this hierarchy in to account, it seems that Kenya has not lived up to its legal obligations on several levels. Al-Hadi Shalluf, a French-Libyan lawyer, has explained that the AU resolution did not overrule the Rome Statute. He claimed that “the AU is a regional organization and it is recognized by the United Nations, but it has no authority and no mandate to break international law."

We know from Otto Triffterer’s analysis of the Rome Statute that any failure to comply with the Rome Statue by an ICC State Party is “tantamount to an internationally wrongful act”. He goes on to explain that the Security Council has the authority to urge compliance, condemn the non-cooperating State Party, or, in the most extreme circumstances, call for economic sanctions. The ASP also has the authority to review the situation and make any recommendations as long as they do not conflict with the UNSC. Consequently, Kenya also has obligations stemming from the UN Charter. UNSC Res 1593 (2005) requires Sudan (an ICC non-State Party) to cooperate with all ICC investigations and “urges all States and concerned regional and other international organizations to cooperate fully.”

By not arresting al-Bashir it appears that Kenya has called into question its commitment to the ICC. Kenya is currently under investigation by the ICC for crimes that were allegedly committed following the 2007 election. Some have claimed that failure to assist with other current ICC cases may ultimately harm the justice process within Kenya. Alison Smith, legal counsel with advocacy group No Peace Without Justice, stated that "if the political will is not strong enough to prevent them extending an invitation to al-Bashir to come to Kenya, we have to question if it will be strong enough to extradite suspects from Kenya."

Widespread post election violence in Kenya killed 1,200 and
displaced over 350,000 in 2007. (Photo: Ben Curits/AP)

Would a slap on the wrist from the UN Security Council or the ASP make future cooperation from Kenya any more likely? Given these recent developments in Kenya, the Office of the Prosecutor is already planning to issue sealed arrest warrants, just in case.