Analysis: Beshir Unlikely to See Inside of Courtroom Soon: Law Experts

THE HAGUE ~ Sudan’s President Omar al-Beshir is unlikely to see the inside of a courtroom soon, law experts said as the International Criminal Court issued its first-ever warrant for a sitting head of state.

Having taken this historic step Wednesday, the court now relies on states to execute the warrant for war crimes and crimes against humanity even as analysts say that grey areas in international law could make it possible for them to refuse.

“This is just getting started. It is very complicated,” Goran Sluiter, law professor at the University of Amsterdam, told AFP.

The court has no powers to enforce the warrant itself, nor can it try Beshir in absentia.

Sluiter said the UN Security Council resolution that referred the case to the ICC for investigation in March 2005 placed no obligation on states other than Sudan to to execute arrest warrants.

By its own wording, the resolution merely “urges all states … to cooperate.”

While the 108 countries that have signed up to the court’s founding Rome Statute did face an obligation, the statute itself offered several options “out of it”, said Sluiter – including allowing them to challenge the evidence on which the warrant was based.

As for Sudan itself, the Security Council referral was vague and failed to mention which legal framework would govern relations between the ICC and Khartoum, which is not a party to the Rome Statute, he argued.

The resolution states that Sudan “shall cooperate fully” with the court.

“But what is meant by full cooperation?” asked Sluiter. “The legal aspects of this matter remain painfully underdeveloped.”

The ICC itself insisted on Wednesday there was nothing unclear about its mandate and said the Security Council referral placed Sudan under an obligation which “prevails over any other international obligation that the government of Sudan may have undertaken.”

Prosecutor Luis Moreno-Ocampo was also of the opinion that Sudan was “obliged under international law to execute the warrant on its territory.”

But Jan Kleffner, international law professor at the University of Amsterdam, said “it may be very difficult to execute the warrant.”

There was uncertainty, he argued, as to whether the Security Council referral overrides immunity that would normally exist on the basis that Sudan was not a signatory of the Rome Statute.

Some also argue that countries reluctant to arrest Beshir could make a legal argument under article 98 of the Rome Statute, which protects states from having to violate bilateral immunity agreements.

All agree that the warrant, though not posing an immediate threat, would certainly make Beshir’s life more difficult.

“It amounts to a de facto travel ban” to non-friendly states, said University of Utrecht international law lecturer Cedric Ryngaert.

Added Kleffner: “It is not entirely futile. He will be more cautious in his travels. And there may be political implications for not complying with the warrant: the UN may consider sanctions.”

Ryngaert said the warrant may force Beshir to “sacrifice some henchmen.”

“He will be under a lot of pressure now to be seen to be doing something. In this way, there may be some justice in the short term.”

And the warrant might isolate Beshir to the extent that it hastens his political demise.

“Justice sometimes just takes time,” said Kleffner.

“You may not find him in The Hague tomorrow, but perhaps in a few years’ time.”

In the end, rallying of political will was the only sure way of getting Beshir before a judge.

Sudan has already said it would not cooperate with the ICC, while the Arab League said it was “very disturbed” by the warrant and the African Union said it could deliver a blow to peace efforts.

“The juridical instruments are there; the legal possibilities are there; but very often in international law it is politics that rules,” said Kleffner.

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