Concerned over the Submission to the ICC
I am quite concerned and agitated about the current media coverage in Sudan which refers to a claimed “submission from two Sudanese Groups” to the ICC that might affect/delay the decision by the judges of the Pre-Trial Chamber on the case against Omar al-Bashir.
My questions are 1) What are these groups and is it not very likely that they are the creation of the regime in Sudan? 2) What gives them the legitimacy to represent the Sudanese people, not to say the persecuted people of Darfur in this specific matter? 3) On what grounds do they base their motion? and 4) Does the ICC mechanism really allow for such maneuvers from state-associated groups to affect and influence its decisions and proceedings towards the system which is under question and accusation?
I am aware that the international community is anxious and concerned about a similar state failure or staged violence as a result of the court decision, but is that strong reason enough to compromise justice and the rightful cause of Darfur? What counteractions could the movements in Darfur or in the Sudanese political arena, or even the people of Darfur and their supporters do to counter-balance the effects of this motion?
The application was filed by a London-based law partnership, Sir Geoffrey Nice and Rodney Dixon, on behalf of two Sudanese groups, Sudan Workers Trade Unions Federation and the Sudan International Defence Group. You are correct in your surmise that the Government is likely to be involved in some way, and that it is an attempt, first, to slow down the Pre-Trial Chamberâ€™s consideration of the case and second, to put some points into the public arena in support of the Governmentâ€™s objections to the ICC.
It seems unlikely that the judges of the Pre-Trial Chamber will consider the application as it the organizations have bypassed the normal procedure of first applying for the standing of amicus curiae and then making their submission. Nice and Dixon have bypassed that stage and simply put their arguments straight before the judges and into the public realm. The ICC has made a special point of giving a voice to victims or survivors of crimes and it is most unlikely that the judges would consider privileging this application over and above any submissions from victims or victimsâ€™ organizations. If the judges were to accept this, they would then be obliged to extend invitations to groups which have campaigned for victimsâ€™ rights or in favour of prosecution. That would slow down the whole process of issuing the arrest warrant.
Having said that, the submission does make some cogent points, for which it has been applauded by the leading British legal journalist Joshua Rozenberg. For example, it criticizes the Prosecutor for making a series of public statements which assume the guilt of the individual he is charging.
Perhaps more importantly, the international community has been pressing the Sudan Government to engage with the ICC. This application is a means of indirectly engaging with the Court and it would be advisable for the judges to treat it in this manner.
The application cites a report by me, which the two lawyers saw in the form of a draft that I circulated to a number of legal scholars. The quotations are no more than what I have already said publicly on the topic, mostly in this blog. I am in the process of finalizing this report for publication on this site before the end of the month.
I agree with Alex partially. The judges will indeed reject the application for a number of reasons
1. The Rome Statute says that only the State or the accused can file motions before the ICC judges. Neither of these two organizations satisfy this requirement.
2. At this stage of the proceedings no submissions are allowed from parties other than the prosecutor or the registry unless the judges asks for observations from a third party similar to when they requested it from Louise Arbor and Antonio Cassesse before Haroun and Kushayb were indicted.
3. One of the groups met with Sudanese officials last year and they promised to extend support to them so Khartoum is behind them at least indirectly.
4. The motion in itself lacks any legal substance or arguments in the prosecutor’s application relating to facts and events mentioned in it. Gathering a million signature is not something the judges would really look at.
5. Attacking the prosecutor or his conduct is irrelevant to to the case or facts the judges will look at. This is something for the State parties. The judges look at whether there is reasonable evidence to issue an arrest warrant or there is not. It’s that simple.
6. Obviously the prosecutor thinks Bashir or Bemba or Lubanga are guilty otherwise he wouldn’t submit a case against him. I am not sure why Alex thinks that Ocampo’s assuming guilt is irrational or unreasonable. If the prosecutor was to say “maybe Bashir is guilty maybe not” would this make any sense? Probably not. His case assumes the guilt of Bashir .
7. Interesting fact that they cite Bona Malwal but they never mention that he is an adviser to Bashir.
8. I am surprised Joshua Rozenberg thinks that this motion will delay a decision given his in depth legal knowledge. Unfortunately following Rozenberg closely he sometimes seems to be influenced by his negative view of Ocampo which makes it hard to give him full credibility when he writes on the ICC at least that’s how I personally feel.