New Delhi: As New Delhi gears up for its biggest ever diplomatic jamboree with African nations, it appears that the President of one of the key countries is a “war criminal”, against whom two arrest warrants were issued in 2009 and 2010. The International Criminal Court (ICC) prosecutor has said that India should “contribute” towards the goal of accountability for the “world’s worst crimes” by arresting the visiting Sudanese President, Omar Hassan Ahmad al-Bashir.
In response to a query from The Sunday Standard, the office of the prosecutor of the Hague-based ICC has for the first time commented on the forthcoming visit of the President of Sudan for the third India-Africa Forum Summit (IAFS) to be held from October 29.
The ICC Pre-Trial Chamber had issued two warrants of arrest against President al-Bashir in 2009 and 2010 for five counts of crimes against humanity, two counts of war crimes and three counts of genocide during the war in Darfur.
India, which is not party to the Rome Statute that created the ICC, has been one of Sudan’s biggest international partners. Before this trip, President al-Bashir has not been on an official visit to India. He has transited twice through India in 1999 and 2002, but hasn’t travelled to the subcontinent since the indictment.
Also Read: India to Host Omar al-Bashir at India-Africa Summit Despite ICC Arrest Warrants
Noting that India is not a member of the ICC, the office of the Prosecutor, Fatou Bensouda, said: “The United Nations Security Council referred the situation of Darfur, Sudan, to the ICC in 2005 through its resolution (1593)”.
The statement added: “It is important to note that the United Nations Security Council 1593 urged all states, including non-State parties to the ICC as well regional and other international organisations, to cooperate fully with the ICC. This includes arresting Mr al-Bashir.”
Further, it said that ICC judges have “clarified that the UN Security Council Resolution 1593 lifted immunities otherwise enjoyed by President al-Bashir under international law”. This was a reference to 2014 when President al-Bashir went to Congo to attend the COMESA meeting, which was again upheld in the case of South Africa allowing the Sudanese president for the African Union summit in August this year.
“By arresting and surrendering ICC suspects, India can contribute to the important goal of ending impunity for the world’s worst crimes,” ICC prosecutor’s office said in response to a query from this newspaper on India’s duties under the international law.
When India invited the 54 heads of states in Africa for the third IAFS, Prime Minister Narendra Modi’s special envoy, Minister of State for External Affairs V K Singh, personally invited al-Bashir on September 19 in Khartoum. After the meeting, Sudanese Foreign Minister Ibrahim Ghandour told the media that President al-Bashir would be attending the mega summit.
When asked about ICC prosecutor’s view about the visit of the Sudanese President, spokesperson of the Ministry of External Affairs Vikas Swarup said, “India is fully compliant with its international obligations.”
Despite international sanctions, India’s political and economic relations have kept apace, with the bilateral trade in 2014-15 being $1.4 billion. Several Indian firms like ONGC, Tata Motors, Mahindra and BHEL are operating in the north African country.
Harvard Law School Professor Alex Whiting, who had been attorney in the ICC prosecutor’s office from 2010 to 2013, agreed that India “does not have legal obligation” to enforce warrant for al-Bashir as UNSC resolution 1593 “does not obligate non-State parties to cooperate with the ICC but only urges them to do so”.
“However, India is a signatory to the Genocide Convention which states ‘that genocide, whether committed in time of peace or in time of war, is a crime under international law which [the contracting parties] undertake to prevent and to punish’,” Whiting said. India became a party to the 1948 Genocide Convention in 1959.
Whiting felt that “this obligation would cause India to think twice about hosting someone who has been charged by an international tribunal with genocide”.
Incidentally, South Africa is currently in the dock in ICC, as it has been asked to explain why—despite being member of ICC—it did not arrest the Sudanese President during his visit in June.
South Africa had claimed that it could not arrest a sitting head of state under domestic law. After a South African court unexpectedly issued an order to the government to enforce the ICC warrant, President Al-Bashir made a quick, quiet exit.
Among the international community, United States may express public annoyance with India, as it did in Aug 31 ahead of Al Bashir’s Chinese sojourn to China to attend the commemorative parade to mark 70th anniversary of victory over Japan in World War 2.
The US state department had then said that it was against “invitations, facilitation or support for travel by persons subject to outstanding ICC warrants”. China, like India and United States, never acceded to the Rome Statute.
Crimes against humanity: From April 2003 to July 2008, he was in “full control” of the apparatus of Government of Sudan forces which committed murder, extermination, forcible transfer, torture and rape.
Genocide: Killing members of Fur, Masalit and Zaghawa ethnic groups, Causing these groups serious bodily or mental harm, Inflicting conditions calculated to bring these groups to physical destruction.
War Crimes: Intentionally directing attacks on civilians in Darfur, primarily belonging Fur, Masalit and Zaghawa group, Pillaging towns and villages.
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