US interference is 'bad for international criminal court'

London: Accusations against Sudanese President Omar Al Bashir by the prosecutor of the International Criminal Court of genocide, crimes against humanity, and war crimes in Darfur do not conform to international law, said an expert.

In an interview with Gulf News, Dr Abdullah Al Asha'al, Professor of international law and international relations at Cairo University, said that even if the judges of the International Criminal Court (ICC) accepted the prosecutor's decision and issued an arrest warrant, it would not be legally binding.

Gulf News: ICC is setting a precedent in accusing a sitting head of state. How do you interpret it according to international law?

Dr Al Asha'al: This is very interesting precedent in fact and it indicates that there is a lot of politicisation of the court. This permanent criminal court was a dream for humanity since the beginning of the 20th century. But unfortunately it has come to be too much political rather than focussing on legal issues.

The act by the prosecutor is illegal in many respects. First of all his decision should have been given to the court in the first chamber to view it first. Secondly he released his decision to the press before submitting it, and thirdly it had been declared public by the US State Department.

So what do you think is behind this decision?

The United States has been trying to put its hands on Sudan through the Darfur issue, and it was the United States that invoked the issue of Darfur at the UN Security Council, which adopted many resolutions based on Chapter 7 of the UN Charter.

All of these resolutions were aimed at putting pressure on Sudan. And now the United States is using the court and manipulating its powers.

This is bad for the court and its reputation in the Arab world.

I have to confess that I was among the fans of the court as we dreamt of having a permanent court for crimes against humanity. Now we are frustrated that this court is drifting into the political arena.

What about evidence the prosecutor said he has to accuse Al Bashir of responsibility for crimes against humanity?

Whatever his evidence is, there are a lot of evidences against many presidents ... US President George Bush himself has got a large and solid file of evidence against him but nobody talks about that.

Sudan is like the United States, both are not parties to the court - they did not sign for it - and Sudan was implicated in this issue through the Security Council, which is an instrument in the hands of United States, by Resolution 1593, which was an infamous resolution. The prosecutor-general should have known the legal limits of his work ... he should not press accusations to a president in power.

Is this a rule in ICC charter?

This is a principle of the international law, which was conferred by a judgement rendered by the International Court of Justice in 2003.

A court in Belgium issued an arrest warrant against the Minister of Foreign Affairs of the Congo, which was accused of similar crimes in Belgium.

The Congo went to the International Court of Justice, which issued a strong verdict condemning Belgium, and the judgement called on Belgium to compensate the Congo and confirmed the fact that senior officials in different states enjoy judicial immunity on both national and international levels.

But killings of innocent people in Darfur should not go unpunished.

I think the problem of Darfur is a domestic, internal problem in Sudan that has international concern.

That international dimension of the problem could not entail any infringement of the international rules concerning the head of the state and the principle of immunity.

The African Union has warned against ICC decision and Sudan is calling an Arab League meeting. What can they do for Sudan?

No one can do anything for Sudan. Sudan needs a political-legal attitude to the issue, they do not need solidarity. They need to take certain steps on the diplomatic and legal levels.

They have to approach the Secretary General of the UN, who has been sympathising with Khartoum. The man is very cautious, as ICC does not belong to UN.

Even if the judges conferred the prosecutor's decision, it still can be diplomatically contained.

Arab states should move quickly as this is very dangerous precedent for many of them.

Sudan should stay calm and continue the trials they are holding on crimes in Darfur within Sudanese law. Even if the court took a decision it would be referred to the Security Council, who first referred the issue to ICC.

The worst possibility is that Russia and China can easily veto any decision in the Council. It is a psychological uproar raised by the United States.

Some would argue for indictment and not to use patriotism as a way to avoid trying a president?

Those people are three types. First are those who work with the United States and Israel. Second, there is the opposition in Sudan, which sees no enemy other than Al Bashir and works hard to eliminate him. The third type are those who do not know the legalities of the international law.

I can be against President Hosni Mubarak in Egypt but for objective reasons I have to resort to the rules of international law. I see these rules only manipulated against Sudan.

What about the rebels and their crimes? What about Israel and what it is doing in Lebanon and Palestine? What about the United States in Iraq and Afghanistan?

Ahmed Mustafa is a writer based in London