Fisking a Jordanian “Seminar” on the ICC and Sudan

I know, fisking pro-Bashir propaganda is kind of a pointless task, but the article made me mad with its shameless inaccuracy.  It’s unfortunate that so many Arab readers — the original article was published in the Al Rai Jordanian Daily — are exposed to this kind of garbage concerning the ICC and Darfur.

Without further ado, the fisking…

Jurists and politicians participating in the seminar held for analyzing legal stance of the International Criminal Court versus Sudan have come out with the conclusion that the ICC step is more of a political rather than a legal one, affirming that hearsay testimony is not enough for issuing legal hearings and pointing out that the Court relied for testimony of fact-finding committee only.

This is inaccurate in two respects.  First, hearsay is admissible at trial (subject to certain restrictions), so it can certainly be used to support the issuance of an arrest warrant.  Second, the OTP did not rely either on hearsay or on the “testimony of fact-finding committee only.”  The OTP did rely on both the UN Commission of Inquiry (UNCOI) or the Sudanese National Commission of Inquiry — to which I assume the article is referring — but the ICC’s Fact Sheet on the Investigation in Darfur makes clear that the OTP also conducted an independent investigation that generated more than 100 formal witness statments through 70 missions to 17 countries, including five missions to the Sudan.

[National Assembly Deputy Speaker Badria al-Sayed] in her address pointed out that the ICC has no jurisdiction over Sudanese nationals considering that Sudan is not state member of the Court and has not ratified the Rome Statute, disclosing that Sudan has withdrawn its signature off the Statute following the ICC step.

But for the Security Council’s formal referral of the situation in Darfur, this statement would be absolutely correct.  Last time I checked, Sudan was still a member of the UN.

She further called on the Court to look into the cases filed by aggrieved Iraqi citizens who have suffered over 240 war crimes none of which has been heard under the contention that Iraq had not ratified Rome Statute.

This claim is inaccurate, insofar as the OTP did formally consider whether British crimes in Iraq justified an investigation.  The OTP ultimately decided not to investigate, even though it concluded that British soldiers had committed the war crimes of wilful killing and torture against Iraqi civilians.  But the declination was based on the OTP’s conclusion that the situation was not sufficiently grave — a conclusion I criticize in my situational gravity essay — not Iraq’s failure to ratify the Rome Statute.

“Even if Sudan had ratified Rome Statute, it would be referred to the ICC only if its judiciary were incompetent or if it were unable to try its nationals for crimes committed,” Badria said, pointing out that Sudan has already tried perpetrators of crimes in Darfur. She moreover indicated that Article (60) of the Sudanese Constitution has provided for criminal accountability of the President of the Republic and that if Parliament had considered he had committed any of the crimes stipulated under the Constitution he would have been brought to trial.

Human Rights Watch has vivisected Sudan’s efforts to “prosecute” those responsible for international crimes in Darfur.  As for the idea that Bashir would have been prosecuted domestically if he had done anything wrong — I’d address that claim, but I just can’t stop laughing.

She stressed that Sudan’s membership in the UN does not place it within the jurisdiction of the Court since the Court is not an organ of the UN. By referring Sudan to the ICC, she said, the UN Security Council has overstepped its powers and violated the principle of sovereignty of states and immunity of heads of state.

The immunity issue is indeed a difficult one, though Oxford’s Dapo Akande has suggested three ways to argue that Bashir is not immune from prosecution by the ICC.   There is no question, however, that the Security Council has the authority under Chapter VII to refer a situation that threatens international peace and security to an international organization that is not part of the UN. Article 39 of the UN Charter authorizes the Security Council to “decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security,” and Article 41 provides that “[t]he Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.”

Jordanian Lawyers’ Dean, Salih Al-A’rmouti, considered pressures Sudan is being subjected to as an outcome of the ongoing power struggle between France and the United States. “We are not betting on international legislations and organizations to defend Sudan against the pressures it is subjected to as much as we have confidence in Sudan to remain staunchly united in the face of these political pressures which are wrapped up in legal guise, ” he said, indicating that ICC judges have admitted to pressures exerted on them by the US Administration and that the fact-finding report submitted by the Italian judge affirmed absence of genocide in Darfur.

I am not sure how Sudan figures into a power struggle between the US and France, but I think it’s safe to say that no ICC judge has admitted to being pressured by the US.  I do kind of like the idea, though, that the US would pressure the judges to issue the arrest warrant.  On top of its stated insistence that it will veto any attempt by the Security Council to defer Bashir’s prosecution, that would indeed be change we can believe in!

As for the fact-finding report, the OTP’s extensive investigation post-UNCOI was discussed above.  I don’t know whether the new evidence will convince the judges to justify an arrest warrant, but the Commission’s conclusion that there was no governmental policy to commit genocide in Darfur is clearly not the last word on the subject.

With articles — and seminars — like these, it’s no wonder that the ICC remains so unpopular in the Arab world.  Very disappointing.