ICC vs. Sudan - Who has Jurisdiction over Darfur?
Last week, I reported on the chief prosecutor of the International Criminal Court (ICC) naming the first suspects in the case involving the situation in Darfur. One of those named suspects, Ali Kushayb, should be tried yesterday by the Darfur special court in El-Geneina, Sudan. This trial, however, was delayed due to an appeal filed by the accused [Reuters UK].
The Kushayb trial is just another way for Sudan showing its opposition to the current ICC investigation of the situation in Darfur. Thus, in 2005, when the U.N. Security Council referred the Darfur conflict to the ICC, the government in Sudan reacted with the formation of the Darfur special court [Reuters UK].
By conducting its own proceedings, Sudan tries to circumvent the ICC jurisdiction. According to the Rome Statute [text, pdf], the jurisdiction of the ICC is determined by the principle of complementarity which makes the admissibility of a case before the ICC dependent on the lack of a genuine prosecution in the original state (here Sudan).
The chief prosecutor of the ICC addressed the issue of admissibility in his opening remarks in connection with the naming of the first two Darfur suspects [text]:
The Government of the Sudan informed the Prosecution that Ali KUSHAYB is under criminal investigation and was arrested on the 28th of November 2006.
Our case is about Ahmad Harun and Ali Kushayb joining each other to attack the civilian population in Darfur. There is no such investigation in the Sudan.
On this basis, the Prosecution has concluded that the case is admissible. To be clear, the admissibility assessment is not a judgement on the Sudanese justice system as a whole. We are just assessing if the Sudanese authorities are carrying out the same case.
Thus, the chief prosecutor of the ICC, as of now, refuses to question the candor of the Dafur special court proceedings and relies on the assertion of joint responsibility as a factor sufficiently different to warrant parallel ICC proceedings. It remains to be seen how this strategy works out.
3 comments:
Nice explanation. How does this all relate to your model "Reconciling Peace with Justice"?
Thanks for your comment, Flavio. Regarding your question: my model does not really apply to the current situation in Sudan, for I only considered situations where a government struggles with bringing past human rights perpetrators to justice (e.g. the young democratic government that succeeds a military regime lacks a functioning judicial apparatus and therefore is unable to investigate and prosecute human rights perpetrators of the former regime). In short, where there was willingness, but lack of capability. For this kind of situation, my model elaborates a plan how the ICC and the local government could best cooperate to bring about peace and justice as soon as possible.
In Sudan, however, the situation is different. The Darfur conflict was referred to the ICC by the U.N. Security Council and not by Sudan. Moreover, the government of Sudan does not want to accept the ICC's jurisdiction in the Dafur case let alone cooperate with the ICC, probably because some of the members of the Sudanese government have to fear prosecution by the ICC. Thus, the Darfur case poses a different problem , namely that of enforcement (which is worth another paper ;)).
The most recent comment of the International Crisis group [available at http://www.crisisgroup.org/home/index.cfm?id=4690&l=1) even seems to predict that the further development in this case, i.e. whether the ICC (with the help of the U.N.) is able to overcome Sudan's resistance and successfully pursue its prosecutions, will determine the future of the institution of the ICC.
This is such a unique blog. Very interesting, and I am learning many things I did not know much about here.
What are you doing nowadays? Please say hello to Flavio!
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