Home | News    Monday 16 June 2008

ICC counsel condemns plans to divert plane carrying Darfur suspect


By Wasil Ali

June 15, 2008 (WASHINGTON) – One of the registered counsels at the International Criminal Court (ICC) described an attempt by the world court to divert a plane carrying a Darfur war crimes suspect as “illegal”.

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Al-Hadi Shalluf

The French-Libyan born counsel Dr. Hadi Shalluf told Sudan Tribune in a phone interview that diverting planes “is a violation of international law because of the negative impact it has on civil aviation”.

“Even if it was done for the purpose of applying the law it is still considered a criminal act” he added.

Earlier this month the ICC prosecutor Luis Moreno-Ocampo told Sudan Tribune that the world court attempted to divert a plane that carried Ahmed Haroun, state minister for humanitarian affairs, on his way to Saudi Arabia in December to perform the annual Islamic pilgrimage.

The plan was coordinated with a number of unidentified countries. The Saudi government was made aware of it, according to Ocampo.

Shalluf said that he is “very surprised that the court would to resort to something disgraceful and immoral like this. I condemn this act”.

He said that the operation would have been legal only if the place landed at its destination and then the ICC could have asked for extradition of Haroun. But he stressed that only a State Party to the ICC is obliged to comply with such a request.

The ICC counsel also said that countries which were part of the plan “are in violation of civil aviation treaties signed in Montreal and New York and any other international conventions regarding safety of passengers”.

“The court’s mandate does not include arresting suspects directly. The ICC can ask countries to execute arrest warrants in accordance with Rome Statue. Otherwise the court becomes a hijacking institution and a police institution” Shalluf said.

The French advocate said his position would have still been the same if the plane was carrying Slobodan Milosevic or Radovan Karadzic.

He further said the plan if successful would have created a “regional conflict and even war” between Sudan and the countries that were enlisted for help in this operation.

“The ICC and its prosecutor bear the full responsibility for this and the UNSC must investigate how that was allowed to happen” he said.


Shalluf reiterated his position that the ICC has no jurisdiction over the Darfur war crimes saying that Sudan is not party to the Rome Statue which forms the basis of the court.

Sudan has not ratified the Rome Statue, but the (UNSC) invoked the provisions under the Statue in March 2005 that enables it to refer situations in non-State parties to the world court if it deems that it is a threat to international peace and security.

But Shalluf disputes this interpretation saying that the UNSC can refer cases of countries that are parties to the Rome Statue. He proposed a special court for Darfur crimes consisting of Sudanese judges and submitted it to the P-5 members of the UNSC as well as the UN Secretary General Ban Ki-Moon.

Asked whether the special court proposal is irrelevant after the report by the ICC prosecutor to the UNSC in which accused the Sudanese state apparatus of covering up the crimes committed in Darfur, Shalluf described Ocampo as being “out of touch with reality”.

“The prosecutor does not deal with the Darfur case realistically. He lives in his own bubble in isolation from the international community. He does not understand the true structure of the African continent or Sudan” he said.

“It is not for his place to question the Sudanese judiciary or any other person for that matter. Sudan is a sovereign state and recognized by the whole world. Sudan judicial system is independent and fair” Shalluf added.

Shalluf said his proposal is based on his belief that the Darfur case is “too complicated to be handled by the ICC”.

“We asked for the formation of a special court based in Sudan or any other African countries” he said.

Nigeria has made a similar suggestion on a special court when the issue of the ICC and Darfur came up in the UNSC in 2005 but it lacked support from Europe and Sudan itself.

Shalluf also blamed the Sudanese government “for failing to deal with the issue of Darfur crimes. This why we saw what happened with the attack by Darfur rebels on the capital”.

However the ICC counsel acknowledged that he has not received any response from the P-5 or UN on his proposal.

“Definitely I don’t expect acceptance to this proposal for the time being. However I am positive that it is being reviewed. The UNSC referring the Darfur case to the ICC should be voided” Shalluf said.


Shalluf was appointed by the court on August 2006 to represent and protect the general interests of the defense in the Darfur case before the ICC during the proceedings on the preservation of evidence and protection of witnesses.

The judges of the Pre-Trial Chamber I of the ICC who were assigned the Darfur case, invited the observations of Antonio Cassese the head of UN commission of inquiry on Darfur and by Louise Arbour the UN High Commissioner for Human Rights concerning the protection of victims and the preservation of evidence in Darfur.

Shalluf filed a long series of motions to challenge the jurisdiction of the Court and the admissibility of the Darfur case at the ICC that were eventually rejected by the judges.

The ICC registry also refused to compensate him for his legal services from December 2006 to February 2007 on the grounds that he exceeded the scope of his mandate. The judges said he presented baseless requests and motions. Furthermore they described the filings made to challenge the jurisdiction of the ICC in Darfur as “frivolous and vexatious”.

Shalluf filed a complaint with European court of Human rights against the ICC and the European parties to the Rome Statue saying that he was denied the right to appeal the judges decision on his compensation.

“This is violation of European law which states that any person should be entitled for a fair trial. The right to appeal is cornerstone of a fair trial. The Rome Statue is incomplete since it empowers the ICC chambers to review appeal requests on cases they already rejected” he said.

“You don’t expect the same court that denied a motion to accept a decision to appeal. This is a serious defect in the Rome Statue” he said.

Shalluf said the case is still pending before the European court.

The judges of the ICC issued their first arrest warrants for suspects accused of war crimes in Sudan’s Darfur region a year ago.

The warrants were issued for Ahmed Haroun, state minister for humanitarian affairs, and militia commander Ali Mohamed Ali Abdel-Rahman, also know as Ali Kushayb. Sudan has so far rejected handing over the two suspects.


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Kind regards,

The Sudan Tribune editorial team.

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