The possibility, in a very near future, of an arrest warrant for Sudanese President Omar al-Bashir, provides us with the opportunity to clarify the jurisdiction of the court regarding the situation in Darfur.
According to the Rome Statute of the International Criminal Court (ICC), the Court has “the power to exercise its jurisdiction over persons for the most serious crimes of international concern”, such as genocide, crimes of war, crimes against humanity, and the crime of aggression once it will have been defined. The testimonies gathered in this film confirm that massive crimes have been committed in Darfur, and that the Sudanese authorities are clearly involved in those massacres.
The situation in Darfur is different from the other cases handled by the Court with regards to the Democratic Republic of Congo, Uganda, and the Central African Republic. As Sudan is not a State party to the ICC Statute, the Security Council, acting under Chapter VII of the United Nations Charter, decided to refer himself the situation to the Court. On 31 March 2005, Resolution 1593 of the Security Council referred the situation in Darfur to the Prosecutor of the Court, as provided by article 13(b) of the Rome Statute. Prosecutor Luis Moreno-Ocampo then decided to open an investigation with regards to the events that have occurred in the region since 1 July 2002, when the Rome Statute creating the Court entered into force.
Under the preamble and article 1 of the Rome Statute the jurisdiction of the Court is complementary, meaning that the Court only has jurisdiction when national criminal jurisdictions do not fulfill their role. As to now, nothing has been undertaken in Sudan, due more to a lack of will than to a true inability to lead proper investigations or proceedings. The main criminals have not yet been tried and the Sudanese authorities do not cooperate with the Court as they do not recognize its jurisdiction.
Worse, some of the people who dare to work with the Court or call for the respect of its decisions are being imprisoned. Despite the arrest warrant issued in 2007 for Janjaweed militia leader Ali Kushayb and former Secretary of State for the Interior Ahmad Harun, they have not been bothered by the Sudanese courts yet. Since then, the latter has even been appointed Secretary of State for Humanitarian Affairs. Sudan is trying very hard to protect the impunity of the authors of crimes in Darfur and their sponsors from foreign interferences. It also turned down the creation of a hybrid court by the African Union designed to try those most responsible for better reconciliation.
Prosecuting the President?
On 14 July 2008, in a tense context, the Prosecutor asked the court to issue a warrant of arrest for President Omar Al-Bashir, head of State and of the Army, accusing him of genocide, crimes against humanity and crimes of war. After requesting additional evidence, the judges of Preliminary Chamber I are about to issue this warrant (as of 22 February 2009). Indeed, under article 27 of the Rome Statute, the Court has jurisdiction over persons with immunity attached to their official capacity, whether under national or international law. This is the reason why even the holder of the supreme authority can be prosecuted before the ICC.
The publicity around this event and the different opinions within the Security Council itself regarding the possibility provided for by article 16 of the Rome Statute to suspend all proceedings against the Sudanese President show how difficult it is to find the balance between justice and the quest for a lasting peace in the country. However, a global solution for peace cannot be conceived without a proper criminal justice that will sentence those responsible for these crimes, if only out of respect for the many victims and their families who still live in the region.
It must be noted that on 20 November 2008, the Prosecutor requested once again that the Court issue a warrant of arrest for three rebel leaders with regard to their alleged responsibility in a deadly attack against soldiers of the AU peacekeeping mission, an act which amounts to a war crime according to the Rome Statute.
What about those who confess their crimes?
What do the people who confess their crimes in this film risk in the end? They probably won’t be prosecuted by the Court, who concentrates on those ranking higher in the hierarchic pyramid. However, they could be called to testify in the event of a trial. According to article 68 of the Rome Statute, video recording can be used before the Court. Moreover, the Court has the duty to take all protective measures to ensure the security of the witnesses, which can prove to be a difficult task given the instability of the region – investigators from the office of the Prosecutor have rarely been able to go there and tried to gather testimonies and evidences from other sources.
The risk for the Court is to find itself in a situation where it will be required to protect its witnesses on the one side, and to exhort Sudan to take measures against those very same persons as perpetrators of international crimes on the other side...
