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Politicizing 'Justice': UN, ICC Action Against Sudan
Growing opposition voiced about Security Council role in ICC warrant against al-Bashir
Ronda Hauben (netizen2)     Print Article 
Published 2009-03-18 16:33 (KST)   
The March 4, 2009 action of the International Criminal Court (ICC) in issuing a warrant for the arrest of the head of state of Sudan, President Omar al-Bashir, has created a significant controversy.

Journalists Ask UN's View of ICC Action Against Sudan

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A press conference was held in Dar Es Salaam, Tanzania on March 12 with the UN Deputy Secretary-General Ash-Rose Migiro. A number of the questions asked by the media reflect the opposition that the recent ICC action against Sudan has stirred up in Africa. (1)

One journalist asked, "On the ICC warrant of arrest on President Al Bashir, Africa's perspective is very clear that it does not support this indictment. The Africans even have a different view from the ICC and believe what President (George) Bush of USA did in Afghanistan and Iraq is more serious than what is happening in Darfur. It seems that the ICC is biased because the issue in Darfur involves an African President! What is your view on the African stance? Do you agree with Africa's view that Al Bashir should be set free [of the indictment --ed]?"

The Deputy Secretary General, who is a former foreign minister of Tanzania, responded that "The UN and the Secretary-General acknowledge the independence and authority of ICC." She explained that the UN Secretary General was calling for Sudan's president and government to cooperate with the ICC.

A related question was asked about the ICC issuing a warrant against a sitting head of state. The journalist asked, "I want to know for sure if the UN supports the ICC warrant. Do you then still recognize him as the legitimate President of Sudan? If you don't recognize him, what are you telling the African countries whose stance is that a sitting President cannot be served with such a warrant and so they will not help in arresting him during a visit to their countries?"

Deputy Sec Gen Migiro's response was that, "The Court is not part of the UN but we recognize its authority. Sudan has a responsibility to ensure that it complies with the ICC and respects Security Council Resolution 1593." She said this resolution by the Security Council obliges UN member states to comply with the ICC action.

Another journalist asked if it wasn't part of a double standard for the Security Council to refer Sudan to the ICC when some of the permanent members of the Security Council were intent on protecting their own citizens and government officials from the authority of the ICC. The journalist said, "On ICC again, some permanent members of the Security Council are not part of the Rome Statute and do not want their citizens to be prosecuted by the ICC even if they commit serious offenses like mass murder. But the same countries have been on the fore front to support the ICC warrant against President Al Bashir. Don't you think this is double standards in international law and this actually diminishes the moral voice of the UN?"

The Deputy Secretary General responded that since the warrant against Al Bashir resulted from a referral to the ICC by Security Council Resolution 1593, nation states who are members of the UN, including Sudan, "are obliged to comply with it," whether or not they have ratified the Rome Statute.

The language of Security Council Resolution 1593, however, referring Sudan to the ICC contradicts the Deputy Secretary General's statement that all members of the UN are bound by the actions of the Security Council even if they did not ratify the Rome Statute.

The language in Security Council Resolution 1593 states, "while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully" (S/RES/1593, 2005)

Hence the Security Council itself acknowledged that it does not have the authority to require states that did not ratify the Rome Statute to enforce its obligations.

What about Sudan? Does the Security Council have the authority to impose the consequences of the Treaty of Rome on Sudan?

The answer to this question is also more contradictory than most western media or the Deputy Secretary General care to acknowledge.

Security Council and the Law of Treaties

Sudan claims that neither the Security Council nor the ICC have the authority to impose the ICC processes on Sudan. Its argument is that Sudan did not ratify the Rome Statute which established the ICC. Under the 1969 Vienna Convention on the Law of Treaties (called the International Law of Treaties), only nations which ratify a treaty fall under its jurisdiction.(2) The Rome Statute, however, which set up the ICC contains a provision for referral to its jurisdiction by the United Nations Security Council under Chapter VII of the UN Charter. (3)

The relevant language in the ICC Statute states that the Court may Exercise its Jurisdiction over a Nation not a party to the treaty, under the provisions of Article 13(b) if:
"(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;"

So the ICC itself has no power to act in a case involving a nation that is not a party to the treaty. It is only if the Security Council acting under Chapter VII of the UN Charter, refers the case to the ICC Prosecutor.

Security Council Resolution 1593 claims that it is acting under Chapter VII of the UN Charter. It does not give any specific reference to a section of Chapter VII, however, that authorizes its action. Nor is there any specific section of Chapter VII that provides for the Security Council to refer a nation to be bound by a treaty if the nation in question hasn't ratified the treaty.

This means that the power to subject a nation that has not voluntarily accepted to be part of the ICC treaty has been assumed by the Security Council without any explicit basis in Chapter VII for its actions.

What Is the Significance of the Security Council Assuming Such a Role in the Functioning of the ICC?

The significance of wielding such a power, some members of the UN point out, is that the power to refer a nation to prosecution by the ICC is turned into a political act. Commenting on the Security Council's failing to act in a consistent way with regard to its treatment of nations that are not members of the ICC, the Algerian Ambassador to the UN, explained why he abstained from voting in favor of Resolution 1593 when it was passed on March 31, 2005. He said, "I regret that, out of a concern for compromise at all costs and at whatever price, those defending the principle of universal justice have in fact ensured that, in this domain, the use of double standards-- of which some have accused the Council -- and a two-track justice were most unexpectedly demonstrated." (4)

Referring Certain Nation to ICC but Shielding Others

Another significant aspect of the relationship between the ICC and the Security Council is that only two of the five permanent members have ratified the Rome Statute establishing the ICC. Great Britain and France ratified the treaty, but the other three permanent members of the Security Council, the US, Russia and China, have not. These three members are protected from being brought before the ICC by the fact that they are not states who accept the treaty. Similarly, the fact they possess the veto on the Security Council means that they can protect themselves from being referred to the ICC by the Security Council. Hence the ICC is in a political relationship with the UN which protects certain members from becoming indicted by the Court, but allows the Security Council to subject other nations who are not party to the ICC treaty to be to put under the jurisdiction of the Court.

Of the 10 elected members of the Security Council, seven have ratified the ICC. These seven are Austria, Burkino Faso, Costa Rica, Croatia, Japan, Mexico, and Uganda. Three of the 10 have not ratified it. The three elected nonpermanent members who have not ratified the ICC treaty are Libya, Turkey, and Vietnam. Taking into account permanent and elected members of the Security Council who have not ratified the ICC Treaty, there are a total of six Security Council members who have not ratified the treaty. This is 40 percent of the membership of the Security Council. Their actions demonstrate they do not feel the ICC should be part of the legal framework of their own nations potentially subjecting their citizens and government officials to possible ICC prosecution. Yet they are willing to subject another nation that has not ratified the treaty to its dictates.

Resolution 1593 (2005) and the Scales of Justice

During the Security Council's negotiations over Resolution 1593, the consideration of how to protect US nationals from ICC prosecution was a major issue. Instead of the Security Council members insisting on a consistent treatment for nations not party to the ICC, a major focus was on how to protect one non-party state, despite subjecting another non-party state to ICC prosecution.

It is not therefore surprising that the Sudanese Ambassador speaking after the Security Council's vote to refer his nation to the ICC, complained that, "the Council believes that the scales of justice and law are based on exceptions and the exploitation of the crises of the developing countries and... the bargaining among major Powers." (p. 12)

Other nations not on the Security Council, such as India and Yemen, agree with Sudan that it is not appropriate for the ICC to exert jurisdiction over a nation that is not a party to the treaty. (5)

There are those who argue that putting Sudan under the jurisdiction of the ICC is the prerogative of the Security Council. Others, for example, like Professor Peter Rosenblum of the Columbia University Law School, point to the fact that the ICC is a young institution and it needs to be careful in its early stages not to complicate its early development by prosecuting non member nations.(6)

Immunity for a Head of State?

Another focus of controversy over the ICC's decision to issue a warrant for the arrest of al-Bashir is the controversy over the question of the immunity which protects the head of state and other public officials from prosecution while they are in office.

An article in the "UN Observer and International Reporter" describes how a different Court, the International Court of Justice (ICJ), the Court connected with the United Nations, ruled in a former case that "an incumbent Head of State held immunity from criminal prosecution while in office and could only be held accountable AFTER no longer being in office." (7) The principle being supported in this decision is the sovereignty of a people against efforts to remove its government by forces or powers outside the country.

A March 10 Reuters article reports that Sudan is considering taking a case to the ICJ challenging the issuing of the ICC warrant against its head of state. (8)

The decision of the ICC to issue a warrant for al-Bashir is being contested. But also being questioned is the referral of Sudan to the ICC by the Security Council, especially when this appears to interfere with the efforts toward finding a peaceful resolution of the conflict. (9)The African Union, the Arab League and other regional organizations will be coming to New York to meet with the Security Council to ask it to delay action in the case so as to strengthen the peace process in Sudan.

What is being questioned in the ICC action is not only the appropriateness of the ICC to act against a non-member head of state, but also whether the Security Council is acting in line with its charter obligations and powers.

Various commentators, including scholars of African studies, have raised questions about the nature of what is being referred to as "the new humanitarianism" which at its essence seems to cast aside key principles of international relations including national sovereignty and non interference in the internal affairs of another nation. (10)

With many voices expressing opposition to the action of the ICC in issuing a warrant against the President of Sudan, the obligation of the Security Council to seriously reconsider its action of referring Sudan to the ICC would seem a necessary responsibility. The argument of politicization of the case against al Bashir leads to a serious questioning of whether the ICC is but another weapon in the arsenal of the Great Powers to recast in a new form the subjugation and domination of developing nations by former colonial masters.


1) United Nations Information Centre - Dar Es Salaam, "Unofficial Translation of the UN Deputy
Secretary-General, Asha-Rose Migiro Press Conference Held at Ministry
Finance, Dar Es Salaam, 12 March 2009, at 1000 Hours.

2) International Law of Treaties, 1969, Vienna.

3) http://www.preventgenocide.org/law/icc/statute/part-a.htm#2

4)Security Council Meeting, Thursday 31 March 2005, S/PV.5158, p. 5

5) ICC has no jurisdiction in Sudan: al-Bashir, July 16, 2008, The Hindu
Yemen strongly condemns ICC's warrant for arresting al-Bashir, Yemen News Agency (SABA), March 10, 2009

6) Alex de Waal and Peter Rosenblum deliver remarks at NYU's Institute for Public Knowledge just after The Hague makes its momentous announcement.

7) Paul V Rafferty: Editorial; The ways of the Law are strange, indeed

See also Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)

8) Andrew Heavens, "Sudan Seeks Options to get war crimes warrant lifted," Reuters, March 10, 2009.

9) Ronda Hauben, "ICC Prosecutor's Indictment of Sudan's President Questioned Journalists at UN press conference ask Ocampo about political motives", OhmyNews International, July 28, 2008

10) Mahmoud Mamdani, "The New Humanitarian Order", The Nation, September 10, 2008
©2009 OhmyNews
Other articles by reporter Ronda Hauben

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