Will the International Criminal Court agree to its prosecutor-general's request to bring Sudan's president to trial? Unlikely, writes Abdallah El-Ashaal* On 1 September the International Criminal Court (ICC) will hold a preliminary hearing on the suit filed by ICC Prosecutor-General Luis Moreno-Ocampo calling for the arrest and trial of Sudanese President Omar Al-Bashir on various criminal charges. The judges will consider several legal questions, including the court's jurisdiction over the alleged crimes, the accused and the country in question, the validity of the charges themselves and whether the defendant should be arrested and brought in by force or permitted to appear voluntarily. The preliminary panel, formed by the ICC president, can consist of one to three judges. In a case such as that of President Al-Bashir the higher number will probably be required. Since the court previously determined that it had jurisdiction over the case of Ahmed Haroun and Ahmed Khashib, it will most likely assert its jurisdiction over the Bashir case. In the earlier case the court grounded its jurisdiction on a fundamental rule that holds that since it was the Security Council, as opposed to an ICC member state, that referred the case on the basis its determination that the situation in Darfur threatens international peace and stability, and since it was not filed by the ICC prosecutor-general independently on the basis of sources of his own, what counts is whether the crimes themselves fall under ICC jurisdiction. In other words, although it stated in the preamble to Security Council resolution 1593 of 31 March 2005, referring Haroun and Khashib to the ICC, that Sudan is not a state party to the ICC, the preliminary hearing in that case determined that as long as the Security Council's resolution was founded on the grounds of a threat to international peace and security this takes priority over whether or not a state is an ICC member. In such a case the court acts in accordance with Chapter VII of the UN Charter. This means that Sudan's claim that the ICC has no jurisdiction over Bashir will be rejected by the court unless the court itself determines that Bashir merits an exception on the basis of at least two considerations. The first is that his absence would lead to a breakdown in order precluding the preservation of peace and justice for the Sudanese people. The second is that as a president he enjoys immunity against prosecution, although the chances of this status being taken into consideration are doubtful since the court will probably invoke Article 27 of the Rome Statute regarding the irrelevance of official duties. In the event that the ICC rules in favour of its jurisdiction over the Sudanese president, Sudan will do its utmost to expose the legal holes in this ruling. Should Sudan establish faults in the court's justifications of its jurisdiction and, more importantly, in the timing and motives behind the prosecutor-general's submission of his request, this could have three consequences each one of which will be detrimental to the prestige and standing of the court. Sudan may appeal to the General Assembly to seek an advisory opinion from the International Court of Justice (ICJ). If it succeeds and if the ICJ rules in favour of Khartoum this will not only come as a defeat to the ICC's interpretation, it will set the assembly against the court. Secondly, if the court rules to arrest the Sudanese president, the UN Security Council will have no legal basis for carrying this out. There is no cooperation agreement between the UN and the ICC, nor is one likely given the opposition of the UK, Russia and China to such an agreement. Even in the event that some members of the Security Council attempt to issue a resolution to execute a warrant of arrest it would only require one veto to halt it. That veto would undoubtedly come from Russia in view of the provocation Washington has caused it in the Caucasus. If the court attempted to solicit the aid of other nations to carry out its warrant these can easily appeal to Article 98 of the ICC statute, which states, "The court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state, unless the court can first obtain the cooperation of that third state for the waiver of the immunity." This renders any such ruling for impossible to execute which, in turn, underscores the fact that in circumstances where nations insist upon their judicial sovereignty the ICC is more of a moral body than a court in the customary sense. An ICC arrest warrant issued on spurious grounds would trigger fear among state- and non-state parties alike that it is abusing its power or that it has been turned into an instrument to achieve the political aims of certain countries via the intervention of the Security Council. Such fears would drive them to turn away from the court. It is wrong to assume that the Security Council's deferral to the ICC justifies the latter's jurisdiction over any given issue. The Security Council cannot confer an authority upon the court that is not established in the court's statute. Moreover, the court may find that the matter referred to it by the Security Council has no valid grounds for prosecution. The Security Council's referral of the Al-Bashir question to the ICC is not a closed and shut case as some have attempted to portray the matter. Furthermore, if the court rests its jurisdiction on the basis of an extraneous factor, namely the Security Council referral, it will have violated Article 34 of the Vienna Convention on the Law of Treaties which states that a treaty creates neither obligations nor rights for a third state, meaning that it applies only to the signatory parties. Nowhere is it written that the Security Council has the right to leapfrog over the provisions of the Statute of Rome establishing the ICC or the Vienna Convention on the Law of Treaties in order to eliminate the barrier between state parties to the ICC and non-state parties. The Statute of Rome confers quite a few rights and privileges to its signatories which are not available to other parties. By what right does the Security Council exact obligations from other parties against their will while simultaneously denying them the rights and privileges of state parties? Surely such a precedent would throw the established frameworks of international relations into chaos. The international community must support Sudan in halting the Security Council's latest offensive in the realm of international criminal justice. True, the case itself is ultimately directed only at the person of President Al-Bashir. However, its perpetuation is an invitation to rebel against the Sudanese government and an invitation to other parties to abet such rebellion against a fellow UN member. In addition, it undermines the steps that Sudan has taken to restore calm and resolve the problem in Darfur. It jeopardises the entire peace process, all the more so if Khartoum decides to abandon that process and resort to its legitimate right to fight insurrection and those who support it. In this case it will be the Security Council and the ICC that are jeopardising international peace and security. * The writer is former assistant to the foreign minister.
