Prosecuting International Crimes in Africa - PULP - University of ...

Positive complementarity and the fights against impunity in Africa 265
On 12 July 2010, the Pre-Trial Chamber I held that ‘on the basis of the
standard of proof as identified by the Appeals Chamber [...] there are
reasonable grounds to believe that Al Bashir acted with dolus specialis/
specific intent to destroy in part the Fur, Masalit and Zaghawa ethnic
groups’. 108 The Chamber subsequently issued a second arrest warrant
against Al Bashir. 109
Sudan has consistently resisted the authority and jurisdiction of the
ICC over its nationals and claims, amongst other things, that the UNSC
Resolution 1593 is flawed 110 and that the indictment and issuance of arrest
warrants against Sudanese officials are violations of the Vienna
Convention on the Law of Treaties 111 and customary international law
relating to the immunity of state officials in the case of Al Bashir. 112
However, scholars and activists are quick to point out that although Sudan
is not a state party to the Rome treaty, by virtue of the fact that the situation
was referred to the ICC by the Security Council acting under Chapter VII
of the Charter of the United Nations, Sudan as a member of the UN is
bound to co-operate with the ICC. 113
From the statements made by the OTP to the UN Security Council, it
appears that Sudan initially co-operated with the ICC on the investigations
both in Uganda and Sudan. 114 The OTP stated that ‘previous cooperation
demonstrates that when willing, the Sudanese authorities are able to
provide diverse forms of cooperation’. 115 This can be illustrated by the fact
that the OTP and the Sudanese government signed an agreement on 2
108
Prosecutor v Al Bashi Second Decision on the Prosecution's Application for a Warrant of
109
110
Arrest 12 July 2010.
As above..
International Crisis Group (ICG) ‘Sudan: Justice, peace and the ICC’ 17 July 2009,
111
Africa Report 152, 10.
Art 34 Vienna Convention on the Law of Treaties, 1969, adopted on 23 May 1969 and
112
entered into force on 27 January 1980.
P Gaeta ‘Does President Al Bashir enjoy immunity from arrest?’ (2009) 7 Journal of
International Criminal Justice 315, 316; C Jalloh ‘The African Union and the
International Criminal Court: The summer of our discontent(s)’ JURIST - Forum 6
August 2010, http://jurist.org/forum/2010/08/the-african-union-and-theinternational-criminal-court-the-summer-of-our-discontents.php
(accessed 13
113
September 2010); R Cryer ‘Prosecuting the Leaders: Promises, Politics and
Practicalities’ (2009) 1 Göttingen Journal of International Law 45, 64.
S William and L Sherif ‘The arrest warrant for President Al Bashir: Immunities of
incumbent heads of state and the International Criminal Court’ (2009) 14 Journal of
Conflict and Security Law 71, 80; D Akande ‘The Legal Nature of Security Council
Referrals to the ICC and its Impact on Al Bashir’s Immunities’ (2009) 7 Journal of
International Criminal Justice 333, 342; D Akande ‘The Bashir indictment: Are serving
heads of state immune from ICC prosecution?’ Oxford Transitional Justice Research
Working Paper Series 30 July 2008; D Akande ‘The jurisdiction of the International
Criminal Court over nationals of non-state parties: Legal basis and limits’ (2003)1
114
Journal of International Criminal Justice 618 – 650.
ICC ‘Eleventh Report of the Prosecutor of the International Criminal Court to the UN
Security Council Pursuant to UNSC 1593 (2005)’ http://www.icc-cpi.int/NR/
rdonlyres/A250ECCD-D9E5-433B-90BB-76C068ED58A3/282160/
115
11thUNSCReportENG1.pdf (accessed 4 September 2010) (OTP UNSC Report 11).
Para 23 OTP UNSC Report 11.