بسم الله
الرحمن الرحيم
Questions:
What is the current status of
Basheer's case on the Darfur issue in the International Court of Justice?
Presently one observes a lessening in the acuteness of tensions between Europe
& America, does this imply that they are closer to a solution on these
issues?
Answer:
First of all: To fully answer the question, it is necessary to present the relevant details of the issue:
1- The ICC is a European initiative designed to strengthen
their interests under the umbrella of international law as well as to challenge
US hegemony. The ICC was created in 1998 by a treaty known as the Rome Statute.
The ICC is supposed to be an independent, permanent court that tries persons
accused of the most serious crimes of international concern, namely genocide,
crimes against humanity and war crimes. The ICC is intended as a court of last
resort for such crimes and intervenes when national justice systems do not take
effective action.
2- The United States signed the Rome Statute on December 31,
2000, but the US Congress never ratified the treaty. Shortly before the ICC
opened in 2002, the Bush administration "unsigned" the Rome Statute,
which President Clinton had approved before leaving office. President Bush
subsequently signed legislation authorizing military action, should the court
arrest an American, and curbed U.S. dealings with the tribunal. Since then
America has been hostile to the ICC.
3- Despite the US not being party to the Rome Accord, as well
as Sudan not being a signatory, the European Union, especially France &
Britain have succeeded in bringing local as well as international popular
pressure and extracted a resolution from the UN Security Council to refer the
Darfur case to the Internal Court of Justice despite Sudan not being a
signatory to the Accord by citing an article whereby the court has the right to
pursue any case on its own when it feels that it threatens the world's peace
& security. Thus the Europeans, especially France exploited the events in
Darfur and exaggerated the crimes taking place there. They projected this to
create a public opinion of lawlessness and threat to peace due to the exodus of
millions and killing of tens of thousands which amounts to genocide and war
crimes. France and England attributed these crimes to the Sudanese government
and the Janjaweed militiamen under Sudan government while turning a blind eye
to the crimes committed by the rebels who enjoy patronage of the European
nations particularly France.
4- Thus France & Britain were able to create public
sympathies against the President Basheer's Sudanese government with regard to
the Darfur events. The Europeans so successfully achieved this that America,
despite knowing that the resolution no.1593 that sought to refer the issue to
the International Court of Justice was which was the handiwork of the Europeans
and aimed to pit an end to the US influence in Sudan, yet the US did not
exercise its right to criticise it during the voting in April 2005 and merely
abstained from the vote! Thus the resolution received 11 votes in favour and
none against it. Four countries abstained, namely, Algeria, Brazil, China and
the US, although America had during the discussions on the resolution
threatened to abstain from voting, it could not muster courage to go against
it, such was the intensity of the public opinion created by France & Britain
against the Sudanese government led by Basheer.
5- In February 2007, The ICC prosecutor, Luis Moreno-Ocampo
requests the issuance of summons against Ahmad Muhammad Harun, former Minister
of State for the Interior of the Government of Sudan, and Mr Ali Muhammad Ali
Abd-Al-Rahman also known as Ali Kushayb, alleged leader of the
militia(Janjaweed). The Sudanese government dismisses the jurisdiction of the
court. On April 27, 2007, the ICC issued two arrest warrants for Ahmed Haroun
and Ali Kushayb. The warrant for Haroun lists 42 counts including murder,
torture and persecution, while the warrant for Kushayb lists 50 counts
including murder and intentionally attacking civilians. Sudan immediately
rejects the handover of the two suspects.
6- For the next eight months Sudan's intransigence continued in
the face of strong European pressure to handover the 2 suspects. Finally in
November 2007, the EU led by Britain asked the UNSC to apply more pressure on
Sudan. "It is frankly an insult to the UNSC that one of the indictees
charged with crimes against humanity in Darfur has been appointed a minister in
the Sudanese government. I am concerned that when the prosecutor of the ICC
reports to the UNSC next month, he will have little positive to say and we will
have to address that," said British Ambassador John Sawers. This was
followed by an immediate flurry of demands by rebel leaders loyal to Britain
and France who implored the UNSC to take strong action. Abdel-Wahid Al-Nur,
leader of the rebel Sudan People's Liberation Movement (SLM), told Sudan
Tribune that achieving peace in Darfur requires "ending the culture of
impunity in Darfur". The rebel leader said that the UNSC must ensure
that Sudan complies with the arrest warrants as mandated by resolution 1593. He
warned that lack of action by the UNSC on the matter "will be construed as
lack of resolve by the council". On December 3 2007, the Darfur rebel
group Justice and Equality Movement (JEM) called on the international community
to stand behind the International Criminal Court (ICC) in the work it is doing
in Darfur. Ahmed Hussein Adam. "There will be no lasting peace in
Darfur without enforcing justice" JEM spokesperson Ahmed Hussein Adam
told Sudan Tribune by phone from London. It was also during this period, the
Ocampo announced that he was going to up new cases.
7- On May 22 2008 the EU parliament urged the EU to freeze the
assets of Sudanese leaders who don't cooperate with the ICC. ICC's chief
prosecutor also revealed that he would announce details of a new case against
senior leaders of Sudan's government. Furthermore, ahead of the EU-US summit,
French ambassador to the United Nations, Jean-Maurice Rupert said, "France
and the European Union are ready to consider additional measures against the
government of Sudan if it continues to refuse to cooperate. All the Europeans
present supported me. It's the first time that six European countries (those in
the U.N. Security Council) state clearly that this U.N. resolution must be
respected."
8- Eventually, on July 14 2008, the EU via the ICC succeeded in
indicting Omar Bashir. Moreno-Ocampo filed 10 charges: three counts of
genocide, five of crimes against humanity and two of murder. Judges were
expected to take months to study the evidence before deciding whether to order
Al-Bashir's arrest.
In
this way, the Europeans were successful in bringing Basheer to prosecution and
thereby dealing a blow to American influence in Sudan by weakening it's agent
Basheer who was accused of war crimes in the International Court of Justice!
9- In the meantime the US worked to preempt implementation of
the court's decisions especially the serious ones concerning prosecution of
Basheer, this despite the Europe successfully mobilising public opinion against
Basheer government's war crimes as well as the international respect &
credibility of the court's investigations. To this end, the US worked as
follows:
A. On April 26 2008, the Bush administration in the face of
international pressure announced that the US now accepted the
"reality" of the International Criminal Court, and that Washington
would consider aiding the Hague tribunal in its investigation of atrocities in
Sudan's Darfur region.
B. America was becoming alarmed at the pace of developments at
the ICC and issued unofficial warnings which later were to become the mainstay
of her agents' position over Sudan and Darfur. Former US special envoy to Sudan
Andrew Natsios warned: "If the ICC goes ahead with the threat mentioned
in the newspapers that they will indict further senior figures within the
Sudanese government then we will drive the country closer to dissolution."
They
further fortified this argument after the court clearly accused Basheer and the
US then focused its arguments that prosecuting him will adversely affect the
peace process in Darfur and throw it off balance...
C. America mobilized her agents in Africa and the Arab world to
stall ICC's initiative to indict Bashir. America sent Amir Mousa to persuade
Sudan to either try Haroun and Kushayb in a regional African court or try them
in a Sudanese court. In doing so, America believed that the charges against
Bashir could be suspended by invoking Article 16 and that the momentum behind
ICC's case would fizzle out. This is because according to the Rome Statue the
ICC will not look in a case that has been prosecuted in local courts. The
African Union (AU), Arab League and the Non-Aligned Movement (NAM), Uganda,
Kenya, Tanzania, Organization of Islamic Conference (OIC) and other countries
loyal to America.
10- The Europeans sensed that America was on the back foot, so
they continued to apply pressure on Sudan and their agents started to publicly
criticize those supporting Sudan. "I really fear that the Arab League
will find itself in a position where it is conspiring with the Sudanese
government against the people of Darfur. In the long run this may turn out
disastrous" the Justice Equality Movement (JEM) official said. The
official also criticized the AU. He said, "Article 4 of the AU's
Constitutive Act confers the right by the body to step in when there are grave
violations of human rights in any member state. This includes war crimes,
genocide and crimes against humanity. So why did the AU not invoke this clause?
Do they not think that the situation in Darfur is severe enough after 5
years?"
11- Along with this, the Europeans especially the French
realised that America had successfully mobilised the Organisation of African
Unity and therefore they began to engage the representatives of the OAU in
discussions. During these meeting, they cited the ‘gains' which they wanted to
achieve as against ‘softening' of their stance and concluded that they must
negotiate with the US on common grounds instead of engaging the US on the same
course, which they argued would be futile. As stated in the statements of its
officials, this was not just pertaining to the prosecution of Basheer or even
insisting of handing over the accused Haroun & Ali, to the ICJ, but rather
in order to achieve the gains in their negotiations. The following points indicate
this:
A. French Ambassador to the UN
Jean-Maurice Ripert said, "We had extensive meetings with
representatives of the African Union (AU) and I think we are passing the same
kind of messages [to Sudan] which stop the killings, stop the military action
in Darfur...Do what you can do to alleviate the human suffering and improve the
humanitarian access to Darfur...increase and improve the capacity of the
authorities to participate in a political dialogue with all political
forces....improve your relationship with Chad."
B. On July 15 2008 , French Ambassador Jean-Maurice Ripert and
British Ambassador John both said it was "not too late" for the
Sudanese authorities to cooperate with the ICC over the indictment of
Humanitarian Affairs Minister Ahmed Haroun and former Janjaweed militia
commander Ali Kushayb. In other words, Bashir could avoid the charges if Sudan
handed over Haroun and Kushayb. To spearhead these efforts Britain instructed
Libya, South Africa and Qatar to get involved.
C. On July 27 2008 Sudan's foreign minister disclosed that
Britain and France had urged Sudan to cooperate with the ICC and hand over the
two suspects wanted by the court for crimes against humanity. He also revealed
that both countries had requested Sudan to facilitate the deployment of Darfur
peacekeepers and to swiftly find a political solution to the conflict.
D. The France, Britain and America unanimity over a Libyan
sponsored amendment to the resolution. The amendment called for the freezing of
any ICC indictment against President Omar Hassan al-Bashir.
E. The Sudanese justice minister Abdel-Basit Sabdarat announced
the appointment of a special prosecutor Nimr Ibrahim Mohamed to look into human
rights abuses committed in war ravaged region of Darfur since 2003. On
September 1 2008 Nimr Ibrahim Mohamed confirmed that he was investigating
allegations against a militia leader Kushayb in connection with Darfur war
crimes. He said, "We are continuing our interrogation of Ali Kushayb
who is accused of committing war..."
F. France accepted that Haroun and Kushayb could be tried in
Sudan. Ripert said, "I said it repeatedly here. Whatever they do they
have to cooperate officially with the ICC. If they want to trial their own
citizens in their own countries this is allowed by the [Rome] treaty. But they
have to do that in agreement with the ICC. It is never too late to
cooperate." Later, Sarkozy speaking to reporters at the UN
headquarters in New York further watered down France's demands with regards to
the two suspects. He said, "We want those accused of genocide not to
stay as ministers in a government in Sudan" [Sarkozy said referring to
Haroun.]. Sudan responded by detaining Kushayb and assured France that he would
be tried. The Sudanese justice minister Abdel-Basit Sabdarat said, "Kushayb
will be tried in Sudan's domestic courts. He is under investigation...."
G. On October 15 2008, the judges of the ICC requested more
time before issuing an arrest warrant for Omar's arrest.
Secondly: Now,
in the light of the aforementioned, we may answer the question:
The Darfur issue and that of Basheer
in the ICJ is moving towards a compromise between America and Europe and this
includes a way out of this crisis to the effect that Haroun & Ali may be
tried locally and Basheer's prosecution will first be a low-key affair before
being annulled. But the gains for the Europeans especially France & Britain
are that they get a foothold in Darfur through the negotiations by involving
their proxy rebel movements effectively in the government as well as for the security
in Chad.
Since the conflict, as indicated
above is moving towards a compromise solution which require intense political
struggle and pressure tactics to heat up the atmosphere in order to improve the
compromise settlement, all of which comprises ‘give & take' as well as
patience... this is not an easy solution, at least not in the foreseeable
future. In any case, this is not expected to materialise before a new US
administration is in place in January 2009. Even after this, it will require
more than a while before more than one influential parties can intervene in the
region.
Or,
See this
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