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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2966

Sudan’s Bashir charged Crimes Against Humanity by ICC: United States uncommitted

President Omar al-Bashir is alleged to have caused 35,000 violent deaths among the Fur, Marsalit and Zaghawa groups in Darfur. (Photograph: Zohra Bensemra/Reuters)President Omar al-Bashir is alleged to have caused 35,000 violent deaths among the Fur, Marsalit and Zaghawa groups in Darfur. (Photograph: Zohra Bensemra/Reuters)Daya Gamage – US National Correspondent Asian Tribune – News Analysis

Washington, D.C. 06 March ( The International Criminal Court ordered the arrest of President Omar Hassan al-Bashir of Sudan Wednesday, March 4 for war crimes and crimes against humanity in connection with atrocities committed in the Dafur Region in Sudan but the question raised here is whether the United States is in full cooperation and support of the move by the ICC to which it has refused to be a signatory.

After months of deliberation, the judges charged Mr. Bashir with war crimes and crimes against humanity for playing an “essential role” in the murder, rape, torture, pillage and displacement of large numbers of civilians in Darfur. But the judges did not charge him with genocide, as the prosecutor had requested.

The charge against the Bashir regime was 2.5 million Darfur residents have been chased from their homes and 300,000 have died in a conflict pitting non-Arab rebel groups against the Arab-dominated government and its allied militias.

The ICC judges refused to entertain genocide charge against Mr. Bashir as there was no sufficient evidence he had specific intent to “destroy, in whole or in part, a national, ethnical, racial or religious group,” the most crucial issue in determining genocide.

The prosecutor had argued that the Sudanese government headed by Bashir tried to exterminate three ethnic groups — the Fur, Masalit and Zaghawa groups — and that after driving them off their lands and killing many people, armed militias continued their genocidal campaign by raping and impregnating the women in the refugee camps.

The warrant to arrest Mr. Bashir is the first in which the ICC, which opened in 2002 in The Hague, has sought the arrest of a sitting head of state. Other war-crimes courts have issued warrants for sitting presidents, including Slobodan Milosevic of Yugoslavia and Charles Taylor of Liberia.

Neither Sudan nor the United States is a signatory to the 2002-Rome Statute that created the International Criminal Court (ICC).

"The United Nations will continue to conduct its vital peacekeeping, humanitarian, human rights and development operations and activities in Sudan," said a U.N. statement released after the ICC issued a warrant for President Omar Hassan al-Bashir on charges of war crimes in Darfur.

U.N. Secretary-General Ban Ki-moon urged Khartoum to cooperate with all U.N. entities and ensure their safety after the International Criminal Court issued an arrest warrant on Wednesday for Sudan's leader.

The UN statement further said: "The Secretary-General calls on the government of Sudan to continue to cooperate fully with all U.N. entities and their implementing partners, while fulfilling its obligation to ensure the safety and security of the civilian population, U.N. personnel and property, and that of its implementing partners."

There are 25,000 international peacekeepers in Sudan serving in a U.N. mission monitoring a 2005 north-south peace deal and a separate U.N./African Union force in Darfur. U.N. aid agencies also have staff in Sudan.

Sudan has announced the expulsion of a number of aid agencies since the International Criminal Court issued an arrest warrant for President Omar Hassan al-Bashir on Wednesday for atrocities in Sudan's western Darfur region, Reuters reported.

The Sudanese government accused some aid groups on Thursday of passing evidence to the International Criminal Court, which has called for Sudan's president to be arrested over war crimes in Darfur.

Hassabo Mohamed Abd el-Rahman, head of the government's Humanitarian Aid Commission, told Reuters some groups had "passed evidence to the ICC" and made false reports of genocide and rape.

U.S. Policy Regarding ICC

One month after the International Criminal Court (ICC) officially came into existence on July 1, 2002, the United States brought in to law American Servicemembers’ Protection Act (ASPA), which limits U.S. government support and assistance to the ICC.

Unless waived by the (US) President, it bars Economic Support Funds (ESF) assistance to countries that have not agreed to protect U.S. citizens from being turned over to the ICC for prosecution. House Resolution 5522, as passed by the House of Representatives, would continue the ESF restriction for FY2007. The Senate passed a measure as part of the 2007 National Defense Authorization Act (H.R. 5122, S. 2766) that would modify ASPA to end the ban on IMET (International Military Education and Training) assistance.

The ICC is the first permanent world court with nearly universal jurisdiction to try individuals accused of war crimes, crimes against humanity, genocide, and possibly aggression. While most U.S. allies support the ICC, the Bush Administration firmly opposes it and has renounced any U.S. obligations under the treaty.

The Obama administration has so far made no comments whether it would reverse Bush policy and repeal the laws passed by the Congress but it is most unlikely.

Instead the United States during Bush presidency was pursuing bilateral "Article 98" agreements to preclude extradition by other countries of U.S. citizens to the ICC. However, in what some view as a sign that the (Bush) Administration was softening its stance with respect to the ICC, the United States did not exercise its veto power at the UN Security Council to prevent the referral of a case against Sudan’s leaders for the alleged genocide in Darfur.

On March 31, 2005, the U.N. Security Council adopted Resolution 1593 (2005) which refers reports about the situation in Darfur, Sudan (dating back to July 1, 2002), to the ICC Prosecutor. This was the first time such a referral from the U.N. Security Council has been made. As Sudan is not a party to the ICC, and has not consented to its jurisdiction, the ICC jurisdiction over the case could only be established by means of a U.N.S.C. referral. Under the ICC Statute, the ICC is authorized, but not required, to take such a case. The Resolution, which is binding on all U.N. member states, was adopted in the Security Council by a vote of 11 in favor, none against and with 4 abstentions — the United States, China, Algeria, and Brazil.

The Congressional Research Service, the research arm of the U.S. Congress, made the following observation to the Congress in a report dated 29 August 2006:

(Begin Quote) "U.S. foreign policy respecting action to address the situation in Darfur was complicated by its position regarding the ICC and its jurisdiction over non-member states. In September 2004, the United States concluded that genocide had taken place in Darfur. According to the State Department, it supported the formation of the International Commission of Inquiry but preferred a tribunal in Africa to be the mechanism of accountability for those who committed crimes in Darfur. After these proposals failed to garner sufficient support, the United States agreed to abstain from voting on the Resolution (which is not equivalent to a veto in the U.N. Security Council) once language was introduced into the Resolution that dealt with the sovereignty questions of concern and essentially protected U.S. nationals and other persons of non-party States outside Sudan from prosecution.110

"The abstention did not change the fundamental objections of the United States to the ICC. Although some view the decision as a sign that the Administration is softening its stance with respect to the ICC,111 it may also be seen as consistent with the U.S. support of a version of the Rome Statute that would have allowed the U.N.

"Security Council to refer cases involving non-States Parties to the ICC, but would not have allowed other states to refer cases. At the same time, the compromise allowed the United States to show support for the need for the international community to come together and take action on the atrocities occurring in Darfur." (End Quote)

In a Fact Sheet issued by the U.S. State Department under the caption The International Criminal Court, U.S. Department of State Office of War Crimes Issues made available to the media and the international community on 06 May 2002 categorically said: "Only nations that ratify treaties are bound to observe them. The ICC purports to subject to its jurisdiction citizens of non-party nations, thus binding nonparty nations."

Despite the arrest warrant on Mr. Bashir Sudan has no obligation to arrest and surrender him to the ICC as Sudan is not a signatory to the Rome Treaty that created the court.

The Congressional Research Service advises the Congress in this manner:

(Begin Quote) "ICC supporters may argue that the ICC has jurisdiction over persons, not nations. Non-party states are not obligated to do anything under the treaty. Therefore, the Rome Statute does not purport to bind non-parties, although non-party states may cooperate or defend their own interests that may be affected by a pending case. ICC opponents, however, may point out that if individuals are charged for conduct related to carrying out official policy, the difference between asserting jurisdiction over individuals and over the nation itself becomes less clear." (End Quote)

ICC supporters may further argue that if the ICC could not assert jurisdiction over non-party States, so-called “rogue regimes” could insulate themselves from the reach of the ICC simply by not ratifying the Rome Statute. The purpose for creating the ICC would be subverted. The United States had proposed to resolve this problem by creating a mandatory role for the U.N. Security Council in deciding when the ICC should assert jurisdiction, but the majority of other countries refused to adopt such a rule on the stated grounds that it would mirror the uneven prosecution of war crimes and crimes against humanity under the present system of ad hoc tribunals.

- Asian Tribune -

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