February 20, 2013 (WASHINGTON) – Egypt intends to soon ratify the founding treaty of the International Criminal Court (ICC) and utilise a loophole that allows it to avoid apprehending Sudanese president Omer Hassan al-Bashir, an official said.
- Egyptian justice minister Ahmed Mekki
Bashir is the first sitting head of state to be charged by the Hague-based court since its inception in 2002 on ten counts of war crimes, crimes against humanity and genocide allegedly committed in Sudan’s western region of Darfur.
He has avoided the risk of arrest to date mostly by travelling to non-ICC members though four African state parties allowed him to visit without taking him into custody.
Egypt, a frequent stop for Bashir in his travels abroad since the warrants, said that it will move ahead with ratification of the Rome statute.
Cairo signed the Rome Statute in 2000 but has yet to ratify it, a process which requires parliamentary review.
The Egyptian justice minister, Ahmed Mekki, made the disclosure on Tuesday at a workshop held at his ministry on International humanitarian law.
"Egypt will soon join the International Criminal Court treaty after reaching a solution to the most important obstacle preventing it from joining," Mekki was quoted as saying by the Turkey-based Anadolu news agency.
The justice minister asserted that his country "could sign a bilateral agreement with Sudan to overcome this obstacle for the sake of joining the court to put Egypt among the countries that respect human rights".
Mekki is referring to Article 98 of the Rome Statute which states 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 the immunity".
The United States is the only country so far to have resorted to this controversial method and signed bilateral immunity agreements with over 100 states to avoid the possibility of dragging its troops to the court while being deployed abroad.
However, it remains to be seen whether Sudan will even agree to such an arrangement which could be interpreted as a recognition on its part of the court’s jurisdiction.
Sudan argues that it is not bound by the ICC orders despite a United Nations Security Council (UNSC) resolution in March 2005 referring the Darfur situation to the court under a Chapter VII resolution because the country is not a state party.
This clause in the treaty is also subject to different interpretations and some legal experts say that it is up to the ICC judges to rule on whether an immunity agreement is a good enough reason to avoid surrendering a suspect.
In a ruling issued in late 2011 over Malawi’s refusal to arrest Bashir, the judges said that "to interpret article 98(1) in such a way so as to justify not surrendering Omar Al Bashir on immunity grounds would disable the Court and international criminal justice in ways completely contrary to the purpose of the Statute Malawi has ratified”.
If Egypt moves ahead with ratification, it would make it the fourth Arab state to join the court. Tunisia was the last Arab nation to accede to the Rome Statute in 2011.
Both Egypt and Tunisia witnessed a revolution in 2011 that toppled regimes which ruled with an iron fist for decades.
Officials in the two countries vowed to ratify a number of international humanitarian treaties to demonstrate their commitments to the rule of law.
Sudanese officials have privately expressed concern over Egypt’s intention to join the court, first announced by Egypt’s former foreign minister Nabil Elaraby in April 2011, which they see as a blow to their efforts to undermine the ICC in Africa and the Arab world.
The former Sudanese justice minister Abdel-Basit Sabdarat echoed the sentiment telling a visiting Egyptian delegation consisting of political leaders in May 2011 that Cairo should review its decision on joining the ICC.
"I blame the Egyptian foreign ministry for their decision to ratify the [Rome] treaty which was rejected by the Arab League besides ignoring the feelings of the brotherly Sudanese people which the court is working to threaten their security," Sabdarat said.
"Did Egypt solve all its internal and external problems to worry in the present time about joining the ICC?" he added.
Sabdarat further said that Sudanese people felt "stabbed in the back" when Egyptian officials met with ex-ICC prosecutor Luis Moreno-Ocampo during his visits to Cairo at the time. He said that Egyptian diplomacy should act with more "awareness" when dealing with Sudanese issues.
Egypt considers Sudan a strategic backyard, particularly as it struggles to prevent African Nile basin countries from amending colonial treaties giving it the lion’s share of the Nile’s waters. So far Sudan has sided with Egypt in this dispute.
The United Nations has said as many as 300,000 people died in the Darfur conflict. Khartoum puts the death toll at 10,000.
Besides Bashir, his defense minister Abdel-Rahim Mohamed Hussein, South Kordofan governor Ahmed Haroun and militia leader Ali Kushayb are also wanted by the court.