The Role of the International Criminal Court and United Nations in Sudan

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WRITTEN SUBMISSION

ON

THE ROLE OF INTERNATIONAL CRIMINAL COURT AND UNITED NATIONS IN SUDAN

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Background

The Darfur war is a war conducted by the Sudanese Government against the Rebel groups in the Darfur part of western Sudan. The war began in the twelvemonth 2003 when Rebel groups like the ‘Sudan Liberation Army’ and Justice & A ; Equality Movement started a battle against the Sudanese authorities as it was accused of suppressing the non-Arab population in the Darfur part. The authorities in reprisal carried out cultural cleaning of the non-Arab population in Darfur with the aid of Arab activists like Janjaweed and chiefly targeted the African folk of the part in order to throw out the rebellions from the part. This cultural cleaning of the African folk by the Sudanese authorities resulted in the violent death of 1000s of civilians and uprooted million others. [ 1 ] The affair was foremost investigated by the United States who termed the offenses committed as race murder and accordingly a committee was appointed by the United Nations Secretary General Koffi Annan to ask into the offenses committed in the Darfur part. The committee in its study submitted to the UN Security Council said that serious degree of war offenses and humanity offenses have been committed in Darfur but did non straight accused the Sudanese Government of the offenses committed and requested further question by passing over the instance to the International Criminal Court. The Security Council passed a declaration to mention the affair to the Prosecutor of the International Criminal Court by a ballot of 11 in favor, none against with 4 abstinences and decided that the Government of Sudan and other parties involved should co-operate to the full with the ICC. [ 2 ] This question besides resulted in the accusal of the Sudanese President Omar Al-Bashir on the counts of perpetrating race murder and humanity offenses.

Power of ICC to look into the affair

The Darfur Situation was referred to the ICC by the Security Council on 31^stMarch, 2005. This was the first of all time matter referred by the Security Council to the ICC. Looking at the state of affairs in Darfur, the international community came out and raised their concerns with regard to the war offenses being committed by the Government against the non-Arab population. The affair was later taken up by the United Nations by virtuousness of the power given to it under Article 39 of the UN Charter. Article 39 of the Charter provinces that: –

“Article 39

The Security Council shall find the being of any menace to the peace, breach of the peace, or act of aggression and shall do recommendations, or make up one’s mind what measures shall be taken in conformity with Articles 41 and 42, to keep or reconstruct international peace and security.” [ 3 ]

So by exerting its power the United Nations appointed a Commission to look into the affair who after carry oning due question submitted the study to the UN Security Council. Further the Security Council referred the affair to the International Criminal Court looking at the grave offenses involved in the affair.

Further, Article 5 of the Rome Statute of the International Criminal Court, 1998 gives legal power to the ICC with respects to the serious offenses refering the international community at big. It gives a figure of offenses such as Genocide, Crimes against humanity, War offenses, etc with respects to which the Court shall exert its legal power. [ 4 ] As study submitted by the committee appointed by the United Nations there was clear indicant of offenses such as Genocide, offenses against humanity, war offenses etc which gives ICC clear legal power in the affair as per Article 5 of the Rome Statute, 1998. But the chief issue that was involved with respects to the engagement of the ICC was that as Sudan was non a member party of the Rome Statue of 1998 which established the International Criminal Court, was the affair within the legal power of the ICC?

The reply to this inquiry lies in Article 13 ( B ) of the Rome Statute of the International Criminal Court, 1998 which states that with respects to a offense mentioned in article 5, the Court can exert its legal power if the offense committed is referred to the ICC prosecuting officer by the UN Security Council as per the commissariats of Chapter VII of the UN Charter. [ 5 ]

So the affair was referred to the ICC by the Security Council while exerting its power under Article 39 ( Chapter VII ) of the UN Charter as the state of affairs in Darfur constituted menace to the international peace and security as the non-Arab population was targeted in 1000000s and their being was in danger as the Government itself along with other activists was carry oning such cultural cleaning.

Where legal power in a instance is granted to the ICC by the mention made by the Security Council, the legal power is valid and strong and the consent of the province is non of importance in such a instance. [ 6 ]

Current Situation

In, March 2009, International Criminal Court issued the warrants against the Sudanese President, Omar Al-Bashir, Ministers Ahmed Harun and Abdelrahim Mohamed Hussein, militia leader Ali Kushayb for perpetrating offenses such as race murder, offenses against humanity and war offenses [ 7 ] by exerting its power of publishing warrants under Article 58 of the Rome Statute, 1998.

As reported by the Chief Prosecutor of ICC Fatou Bensouda to the UN Security Council offenses are still being committed against the non-Arab population in Darfur and no apprehensions were made with respects to that. The reaction of the Sudanese Government was non assuring when it comes to penalizing the accused individual. The ICC and the UN continuously asked for the government’s aid in collaring the accused but no actions have been taken up by the Sudan Government.

As Sudan continuously failed to co-operate with the ICC by declining to put to death the apprehensions of the accused and to indulge into any sort of conversation with the governments, the ICC on 9^ThursdayMarch 2015 decided to inform the UN Security Council about the failure of the Sudanese Government in collaring and give uping the accused individual and asked them to take the steps as it deem fit. So the affair has once more been referred to the UN Security Council and has been left on its discretion to take the necessary actions as it may hold tantrum. [ 8 ]

Prosecuting the Head of the State and other State functionaries

As per Customary International jurisprudence, a caput of province can non be prosecuted. But Article 27 of the Rome Statute, 1998 was introduced intentionally to convey them under the scope of international condemnable justness. [ 9 ]

As per the Rome Statute of 1998, a caput of the State merely like any other individual can be prosecuted. A normal individual other than caput of a State may be prosecuted under Article 25 of the Statute which talks about Individual condemnable duty and says that the ICC will hold legal power over all the individuals perpetrating offense within its legal power. [ 10 ] So Article 25 gives the Court legal power to prosecute any individual who has committed any offense within the Court’s legal power. The linguistic communication of Article 25 suggests that the Court will hold legal power with respects to any individual who is signer of the Rome Statute of 1998.

By and large, the Court’s legal power is besides merely limited to its member province, though Sudan is non a member party to the Rome Statute of 1998 but still ICC can validly claim the legal power on any individual belonging to Sudan as the affair was specifically referred to the ICC by the UN Security Council by virtuousness of its power under Chapter VII of the UN Charter. So even though Sudan was a non-state party, ICC can prosecute any individual belonging to Sudan and therefore the Ministers Ahmed Harun and Abdelrahim Mohamed Hussein and the militia leader Ali Kushayb can be charged and prosecuted by the ICC.

But the Sudanese President Omar-Al Bashir is non subjected to Article 25 of the Rome Statute of 1998. Bing the caput of the State he can non be prosecuted merely like other normal individuals and the other curates. For this, Article 27 was introduced in the Rome Statute of 1998, which states as:

“Article 27

Irrelevance of official capacity

1. This Statute shall use every bit to all individuals without any differentiation based on official capacity. In peculiar, official capacity as a Head of State or Government, a member of a Government or parliament, an elective representative or a authorities functionary shall in no instance relieve a individual from condemnable duty under this Statute, nor shall it, in and of itself, represent a land for decrease of sentence.

2. Unsusceptibilities or particular procedural regulations which may attach to the official capacity of a individual, whether under national or international jurisprudence, shall non exclude the Court from exerting its legal power over such a person.”[ 11 ]

As clearly pointed out by Article 27 ( 1 ) that no differentiation shall be made between any individual and that the Statute shall use every bit to everyone irrespective of the places held by them. This proposition suggests the thought that under the International condemnable jurisprudence no individual can be exempted of the wickednesss that he hold committed simply on the land that he is a caput of the province. Everyone stands at the same terms under the International condemnable justness system.

Further, Article 27 ( 2 ) puts the proviso of this Statute above other National or International jurisprudence which provides unsusceptibility to the caput of the province on the footing of his official capacity. It says that the Court will hold legal power over that individual irrespective of the unsusceptibilities granted to him under other Torahs.

So by reading Article 25 and 27 of the Rome Statute, Omar-Al Bashir along with the accused curates can be charged comprehensively. But now the difference that arises is with respects to Article 98 ( 1 ) of the Rome Statute, which states:

“Article 98

Cooperation with regard to waiver of unsusceptibility and consent to give up

1. The Court may non continue with a petition for resignation or aid which would necessitate the requested State to move inconsistently with its duties under international jurisprudence with regard to the State or diplomatic unsusceptibility of a individual or belongings of a 3rd State, unless the Court can foremost obtain the cooperation of that 3rd State for the release of the immunity.”[ 12 ]

So at that place seems to be a clear contradiction between Article 27 and Article 98 ( 1 ) of the Rome Statute. Article 98 ( 1 ) provides that the province can avoid conformity with respects to give up or assistance with regard to diplomatic unsusceptibility of a individual. As per Article 27 functionary unsusceptibilities are non to be considered by the Courts, than why such unsusceptibilities should be considered by the Court in instance of petition made by the State with respects to give up or assistance? If all the provinces starts bespeaking to avoid conformity with the resignation order merely because the individual sought for enjoys official unsusceptibility and the Court considers such petition and does non continue than that in itself would render the intent of Article 27 meaningless. [ 13 ]

But as no such petitions were made by Sudan as it did non indulge into any sort of negotiations with the ICC governments, the apprehension of Omar-Al Bashir along with the Curates and other individuals can be made by the virtuousness of Article 25 and Article 27 of the Rome Statute of the International Criminal Court, 1998.

Conclusion & A ; Suggestion

The war offenses committed in Darfur by the authorities of Sudan against the non-Arab population in the Darfur part of Sudan has attracted the eyes of the International community at big. The UN Security Council referred the affair to the ICC after go throughing a declaration under the commissariats of the Chapter VII of the UN Charter. Sudan though non a signer to the Rome Statute of 1998 set uping the International Criminal Court, is still obliged by the ICC because of Article 13 ( 2 ) of the Rome Statute as the instance was referred by the UN Security Council. Subsequently biddings was besides issued against the Sudanese President Omar-Al Bashir along with others but no actions were taken by Sudan. As Sudan failed in following with the waies issued by International Criminal Court and has non surrendered the accused to the detention of the ICC, the ICC has once more referred the affair back to the United Nations Security Council, now it is upto the Security Council to take the steps under the International jurisprudence. The possible steps that can be taken up by the Security Council include countenances that may be imposed internationally on Sudan. Sanctions though are non a perfect tool of action but it is the lone feasible option available right now as military intercession in Sudan should non be promoted now as it is excessively late for such action as it should hold been taken in the first topographic point itself when the war offenses and race murder was committed in Sudan manner back in the twelvemonth 2005. Sanctions such as fiscal, trade, travel etc may be imposed on Sudan as it is necessary to set some force per unit area on the state so that as the state of affairs gets worse for Sudan in the International sphere, it considers following with the waies of ICC and UN Security Council.