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Cablegate: Articles 17 and 19 of the Rome Statute: Sudan's Legal

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UNCLAS SECTION 01 OF 02 KHARTOUM 001717

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E.O. 12958: N/A
TAGS: ASEC PGOV PREL KPKO SOCI AU UNSC SU
SUBJECT: ARTICLES 17 AND 19 OF THE ROME STATUTE: SUDAN'S LEGAL
SYSTEM UNLIKELY TO BE OF HELP TO PRESIDENT BASHIR

1. (SBU) Summary: Articles 17 and 19 of the Rome Statute of the
International Criminal Court (ICC) provide room for Sudan to head
off impending ICC trials of Sudanese nationals by conducting its own
investigations and prosecutions, but legal experts doubt that Sudan
possesses adequate laws and an "able and willing" judicial climate
to carry out its own trials. Although reports indicate that ICC
indictee Ali Kushayb is currently in custody (reportedly under house
arrest in Khartoum, but able to move about freely,) while his fellow
indictee Ahmed Haroun is said to have reduced his activities as
State Minister of Humanitarian Affairs, but continues to participate
in some public events. End Summary.

2. (SBU) Even though Sudan is not a party to the ICC, articles 17
and 19 of the Rome Statute provide Sudan with legal cover under the
term "complimentarity." In other words, in lieu of an ICC
investigation, Sudan has both the discretion and the jurisdiction to
conduct its own prosecutions and trials for crimes such as genocide,
war crimes and crimes against humanity. In a best-case scenario for
the ruling National Congress Party (NCP), article 17 permits the ICC
to classify a case as inadmissible if "the case is being
investigated or prosecuted by a State which has jurisdiction over
it." Article 19 similarly permits Sudan to challenge the
jurisdiction of the court, following a decision on the case's
admissibility, "on the ground that it is investigating or
prosecuting the case or has investigated or prosecuted." (Note: An
article 18 ruling on inadmissibility has been obviated by Security
Council resolution 1593. End note.) Should the Sudanese carry out
their own trials of Sudanese war crimes suspects and find them not
guilty, article 20 guarantees that protection from double-jeopardy
would apply provided trials were "conducted independently or
impartially in accordance with the norms of due process recognized
by international law."

3. (SBU) Mohamed Ibrahim, a former Egyptian judge and currently a
senior officer at UNMIS Human Rights, told poloff on November 24
that it would take a major "leap of faith" for the ICC to conclude
that the Government of Sudan (GoS) would be "able and willing" to
carry out its own investigation and prosecution of war crimes
suspects. Legislative drafts of amendments to the Sudanese criminal
code include prosecution for war crimes and crimes against humanity,
and according to Ibrahim, could meet the standards to prevent an ICC
investigation. However, the possibility remains that the amendments
will be greatly watered down to remove prosecution for the crimes
mentioned in the Rome Statute. Additionally, up to this point, no
draft has included any mention of retroactivity, which would be
necessary to prosecute individuals for the crimes already committed
in Darfur. However, Ibrahim added that Sudan could hypothetically
investigate and prosecute internally war crimes suspects under the
Geneva Conventions, which Sudan ratified in 1957. Salih Mahmoud
Osman, a opposition member of Parliament and prominent human rights
lawyer, told poloff that the bill covering the amendments to the
criminal code has not yet been presented to Parliament, and with the
Parliament ready to close shop for almost all of December, those
bills may not reach a vote until far into the new year.

4. (SBU) Sarah Nouwen, a Dutch legal scholar studying practical
applications of articles 17-19 of the Rome Statute at the University
of Cambridge, told poloff that even if Sudan manages to organize a
credible legal process against Haroun and Kushayb, this is unlikely
to help with the arrest warrant hanging over the head of Sudanese
President Omar el-Bashir. If a genuine prosecution of Haroun and
Kushayb under Sudanese law satisfies the conditions of articles 17
and 19, the prosecutor, under article 53 of the Rome Statute, can
conclude that "a prosecution is not in the interests of
justice...(or) the interests of victims," and can determine that
there is no "reasonable basis to proceed with the investigation."
However, article 53 may be far from good news for Bashir and the
NCP, as according to Nouwen, ICC Prosecutor Luis Moreno Ocampo has
already drafted a paper suggesting that the interests of justice and
the interests of peace are two different issues not entirely
compatible with one another.

5. (SBU) Ibrahim told poloff that he envisions one of two macabre
scenarios taking place either before or after the ICC issues an
arrest warrant for Bashir. In the first scenario, the NCP could
choose a Darfur war crimes scapegoat whose "elimination" would sever
the chain of command leading from the crimes themselves to senior
figures in the government; Ibrahim cited the suicide of Syrian
Interior Minister Ghazi Kanaan in the case of the 2005 assassination
of Lebanese politician Rafik Hariri as a similar case. In the
second scenario, Haroun and Kushayb could be pressured to confess to
the ICC accusations, in exchange for the ICC's strongest penalty -
life imprisonment in the Hague, as the ICC has no death sentence.
Their personal sacrifice would maintain the status quo in Sudan,

KHARTOUM 00001717 002 OF 002


while at the same time ensuring rich compensation for their tribes -
something similar to what Libya did with the Lockerbie case.
(Comment: It seems unlikely to us in the Sudanese context that
either of these scenarios is likely. An attempt at local justice
is about as far as the regime can go, given the need to maintain the
loyalty of the many others who have also committed crimes and don't
want to see the regime start turning over indictees to the ICC. End
comment.)

6. (SBU) By all indications, Sudanese authorities have yet to take
any real action to arrest Haroun and Kushayb. PCP leader Hassan
al-Turabi recently told CDA Fernandez that State Minister Haroun has
been absent from the office and maintaining a low profile ; however,
the embassy received an invitation to a November 26 NCP-organized
"International Youth Forum for Thought and Culture" at which Haroun
is scheduled to speak. Kushayb's whereabouts have not been
confirmed; however, a source with the Darfur Bar Association in El
Geneina denied rumors that Kushayb is in custody in the capital of
West Darfur. Others have told us that Kushayb is in Khartoum,
technically under house arrest but free to move about the city.

7. (SBU) Comment: We have heard from some of our European
counterparts in Khartoum that the ICC indictment of President Bashir
may come sooner than expected, perhaps in December, and, even if
this is inaccurate, there appears to be little the regime can do now
to head off the ICC. The GOS is likely to resort to articles 17 and
19 of the Rome Convention if and when an arrest warrant is issued
and if the Security Council does not pass and article 16 deferral,
as now appears increasingly unlikely. While post claims no legal
authority in the interpretation of the ICC articles mentioned above,
we pass them on merely as illustrative of what our contacts here in
Khartoum anticipate as likely actions by the GOS if there is an
arrest warrant. The chances of the GOS convincing the ICC that its
legal system is a suitable substitute are slim indeed, but we can
nonetheless expect that the GOS will try to make their case - as
often happens in Sudan, too little too late to matter.

FERNANDEZ

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