ICC PROSECUTOR TO FILE A NEW APPLICATION IN DARFUR

C O N F I D E N T I A L THE HAGUE 000593 DEPARTMENT FOR S/WCI - WILLIAMSON/SHIN, L - BELLINGER, L/UNA - BUCHWALD, L/AN - SANFORD, INR/GGI - MARGULIES/MORIN E.O. 12958: DECL: 07/11/2018 TAGS: KAWC PGOV PREL SUBJECT: ICC PROSECUTOR TO FILE A NEW APPLICATION IN DARFUR SITUATION JULY 14TH REF: 2007 THE HAGUE 0862 Classified By: Classified by Legal Counselor Heather A. Schildge per reasons 1.4(b)&(d) --- PROSECUTOR TO REQUEST BASHIR'S ARREST --- 1.Q(C) The ICC Prosecutor has announced that he will be filing a new application on Monday, July 14th at 12:00pm (6:00 am Washington, D.C.) in connection with the Darfur situation. Embassy officer has confirmed with contacts in the Prosecutor's office that it is most likely to be an application for an arrest warrant for Sudanese President Omar al-Bashir and will allege that Bashir committed the crimes of genocide, crimes against humanity and war crimes directly and through others under Article 25(3)(a) of the Rome Statute. The application, like past applications, will provide a lengthy description of Bashir's alleged crimes. The application will be the Prosecutor's second application in connection with the Darfur situation. The Prosecutor's first application was a February 27, 2007 application for summons to appear for Ahmad Harun and Ali Kushayb -- for which the Pre-Trial Chamber (PTC) issued an arrest warrant on April 27, 2007 (Reftel). --- NO IMMEDIATE ACTION BY PRE-TRIAL CHAMBER; BUT WILL LIKELY ISSUE AN ARREST WARRANT --- 2.Q(C) The ICC's PTC I (Judge Kuenyehia, Ghana; Judge Steiner, Brazil; Judge Usacka, Latvia) will receive and review the Prosecutor's application to determine whether to issue an arrest warrant. In particular, the PTC will decide whether there are reasonable grounds to believe that Bashir committed one or more of the alleged crimes and that his arrest is necessary. Given, however, that the ICC will be in recess July 19 through August 10, the PTC will have only approximately four working days to review the application before the recess. Embassy's contact believes that the PTC will not take action within those four days, nor immediately after the recess. Moreover, if the Court's past experience with the Harun and Kushayb application is any indication, it may take two months for the PTC to make a decision. The Prosecutor's application also presents new issues for the ICC given that this is the first ICC genocide application and the first ICC application for a Head of State. With respect to the Head of State issue, the Rome Statue explicitly provides for prosecution of Heads of State addressing, in Article 27, both functional immunity (indicating that: "official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute") and personal immunity (indicating that: "immunities or special procedural rules which may attach to the official capacity of a person . . . should not bar the Court from exercising its jurisdiction over such a person"). In terms of whether the PTC will issue the arrest warrant, Embassy's contact is fairly confident that the PTC will in fact issue the arrest warrant. --- NEXT LEGAL STEPS: REQUESTS FOR COOPERATION --- 3.Q(C) If the PTC decides to issue an arrest warrant, the PTC will also need to decide which countries will receive a request for cooperation for Bashir's arrest and surrender. According to Embassy contact, the Prosecution's application will not provide any specific comments in this respect. Thus, the PTC may follow the same practice it did in the Harun and Kushayb application and instruct the Registrar to deliver cooperation requests to the Government of Sudan, all Rome Statute Parties, all non-Party Security Council Members and Egypt, Eritrea, Ethiopia and Libya (which includes all the neighboring States but Saudi Arabia). Such requests for cooperation may, however, be complicated by immunities issues. In particular, notwithstanding the immunities provisions in Article 27 (see para 2),Article 98 of the Rome Statute provides that the "Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of immunity". Consequently, the Court may very well need to address the interplay between this provision and Article 27. 4.Q(C) After an issuance of the cooperation requests, the Court is limited in what it can do both as a legal and practical matter. The ICC does not have enforcement authority, and consequently, relies on States to take action against those subject to ICC arrest warrants. A Sudanese Government headed by Bashir cannot be expected to take action against Bashir. Consequently, as a practical matter, Bashir will be restricted from traveling outside of Sudan or at least to any State that might give effect to an ICC arrest warrant. --- INITIAL FEEDBACK PROSECUTION IS RECEIVING --- 5.Q(C) In the last 24-48 hours, the Prosecutor has been widely announcing his intended action with differing degrees of detail. Consequently, the Prosecutor's Office has also begun to collect some reactions. For example, according to Embassy contact, the Prosecution's Office is already aware of the on-going P-5 discussions regarding China's proposal to use Article 16 of the Rome Statute to defer the investigation. It's not clear, however, what, if any, action the Prosecution will take with respect to China's efforts. Additionally, the Prosecution has made special efforts to reach out to the African States. In particular, Deputy Prosecutor, Fatou Bensouda, briefed the Peace and Security Council of the African Union in Ethiopia today on the Prosecutor's July 14th application. Although it's not clear to what detail she described the Prosecutor's application and notwithstanding the Prosecutor office's long-standing efforts to engage with African States, the initial reactions do not appear to be positive. Some suspect it may be because the ICC's current investigations only concern African States and others believe that a number of African leaders are concerned about their own status. Finally, the Prosecutor's office is continuing to maintain contacts with relevant UN officials to determine the security situation on the ground for the UN and relief workers. --- COMMENT -- 6.Q(C) QWith this application, the Prosecutor is taking a high-stakes gamble -- not only for the ICC but for global politics. We can only hope that the gamble is not at too high a cost. We will continue to watch the impact this gamble has on the ICC. Gallagher