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Icc And Sudan Essay

3949 words - 16 pages

Baraa Elhariry
International Law
Professor Taub
Due Date: 12/16/2011
UN Security Council’s Referral and Article 16 of the Rome Statute
The Darfur Conflict began in February of 2003 when the Sudanese Liberation Movement (SLM) and the Justice and Equality Movement (JEM) took up arms against the Sudanese government claiming their actions as a retaliation of years of persecution by Arab Sudanese in the north against non-Arabs in the south. They were met with resistance by the national army and the Janjaweed forces, a militia that is not officially recognized by the Sudanese government, but acts in its’ best interests nonetheless. The United Nations estimates that there have been at least ...view middle of the document...

The Ivory Coast and Kenya have been investigated proprio motu (“on his own impulse”) by the Prosecutor himself.
On March 31, 2005 the Darfur situation in the Sudan was referred to the International Criminal Court (ICC) by the United Nations Security Council (UNSC) after the successful passing of Resolution 1593, which required that Sudan “cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to the resolution”. Four years later, in March of 2009, the Prosecutor of the Court, Luis Moreno-Ocampo issued the first arrest warrant for the sitting Sudanese President, Omar al-Bashir. He was charged with multiple counts of crimes against humanity and war crimes that included rape, murder and intentionally directing attacks against a civilian population. Warrants were also delivered to the leader of the Janjaweed, Ali Kushayb and former Minister of the Interior, Ahmed Haroun. Al-Bashir was served another warrant in July of 2010 that included charges of genocide. Criticism came soon after as many observers, including the African Union (AU) and the Organization of the Islamic Conference (OIC) pointed out that Sudan, under the direction of al-Bashir, signed but did not ratify the Rome Statute, thus rejecting the jurisdiction of the Court. They claimed that the referral by the UNSC and the subsequent warrant are breaches of Sudan’s national sovereignty, a violation of al-Bashir’s’ personal immunity, and that Sudan is perfectly capable of trying the perpetrators in the Darfur conflict by its own judicial system. They cited Article 98 of the Rome Statute, which refers to the protection of personal immunity of heads of state from the jurisdiction of the ICC. The AU in particular called on the UNSC to defer the proceedings of the Court by invoking Article 16 of the Rome Statute which states that, “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of The Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.” The Security Council has yet to ever defer a case. Claiming they had no obligation to the ICC’s arrest warrant, six member countries of the AU hosted al-Bashir in the spring of 2009; Egypt, Libya, Saudi Arabia, Qatar, Ethiopia, and Eritrea. The AU made their defiant stance towards the ICC clear in July of 2009 when they said “In view of the fact that the request by the African Union has never been acted upon, the AU Member States shall not co-operate pursuant to the provision of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan.” They reiterated that stance in 2010. (Amnesty International, 2010) In August of 2010, al-Bashir then visited Chad and Kenya, two state parties to the Rome Statute, and was not arrested. ...

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