In July 2009 the summit of the African Union Heads of State and Government decided not to cooperate with the International Criminal Court in its endeavors to arrest the President of the Sudan H.E Omer Hassan Ahmed Elbashir. Some criticized that decision and showed their astonishment how African leaders take such a decision on a leader accused by the ICC of committing war crimes against African fellow citizens.
This article tries to look at the reasons behind this decision which is based on legal, political and strategic considerations that can be summarised in the following:
• The Sudan is not a member of the ICC and therefore is not subject to its jurisdiction. According to article 34 of Vienna Convention on the Law of Conventions, 1969, any treaty or convention binds only the countries which sign and ratify it.
• The Charter of the United Nations does not give the Security Council the authority to refer any situation under its consideration to any other institution. Therefore the Council, which referred the situation in Darfur to the ICC through its Resolution No 1593, has no right to do that.
• The UN Security Council Resolution 1593 which refers the situation in Darfur contains some legal contradictions. The first paragraph of the resolution refers the situation in Darfur to the ICC in spite of the fact that the Sudan is not member to the Court. At the sixth paragraph, the same Resolution gives the citizens of the Permanent Members of the Security Council, which are not members at the ICC, immunity from subjecting to the jurisdiction of the Court.
• Sudan ’s membership at the UN does not subject it to the jurisdiction of the ICC, which is not subsidiary organ to the UN.
• According to the article 12 (3) of the Rome Statue which established the ICC, acceptance of the state which is not party to the Rome Statute is required as precondition for the exercise of the Court’s jurisdiction over that country. It states that “the state may, by declaration lodged with the Registrar of the ICC, accept the exercise of jurisdiction by the Court with respect to the crime in question”. Sudan has not lodged that declaration and therefore is not subject to the jurisdiction of the court.
• The ICC jurisdiction is based on the Principle of Complementarity which means that the Court cannot accept to investigate a case, which has been investigated or prosecuted by a state which has jurisdiction over it.Sudan has already started the process of investigation and prosecution. some indicted persons have been sentenced. The processes of investigation and prosecution have been halted by the conflict .Therefore the court has no jurisdiction over the case that has been investigated and prosecuted by the Sudan.
• African leaders know that the Government of Sudan did not initiate the conflict in Darfur . To the contrary it tried to contain and repulse the attacks of the rebel movements who destroyed schools, police stations, hospitals and other government institutions.
• They also know that the obstacle to the peace in Darfur has been and still is the stubborn positions taken by the rebel movements which want some members of the international community to fight their war.
• African leaders do not have hidden agenda that compel them to blow the situation in Darfur out of proportion. On the contrary, they want peace to prevail.
• Some Western countries blew the situation in Darfur out of proportion and supported the rebel movements in their quest to punish an Asian country that has been cooperating economically with the Sudan . Contrary to these Western countries, African countries do not have any prejudice against any country cooperating with Sudan.
• African leaders acknowledge the fact that the situation in Darfur has been steadily improving thanks to the cooperation of the Sudan Government with the UNAMID. They realized that the security and humanitarian situation in Darfur is far better than the situation in some parts of the world.
• African leaders also realised that the approach of some actors in the international community is neither in the interest of justice and reconciliation in Darfur nor in the interest of peace and development in the Sudan and the region.
• In their quest for economic integration in the continent Africans fully understand that Sudan is a pivotal country in this process. It is the largest country area-wise, and has one of the fastest growing economies in the continent.
It is the largest economy in Eastern and Central Africa.
Thus it is crystal clear that the African support to Sudan has nothing to do with the traditional African solidarity. It is a direct result of African leaders understanding of the situation in Darfur and the lack of any hidden agenda from their part. Those who want to understand the African position have to liberate themselves from any predetermined judgment and to look to the facts on the ground with an open, neutral and objective mind.
(Magdi A. Mofadal is a diplomat at the Sudan Embassy – Nairobi)