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Attorneys: Arrest warrants against Sudan president are illegal

By Samson Ntale, For CNN
  • Al-Bashir's arrest warrants should be revoked, attorneys say
  • The warrants have drawn criticism from several African nations
  • Attorneys say al-Bashir should be able to attend African Union summit

Munyonyo, Uganda (CNN) -- Arrest warrants issued for Sudanese President Omar al-Bashir for allegations of war crimes and genocide are illegal and should be revoked, according to two British attorneys.

The issue of immunity for a sitting president has never been resolved, and can only be dealt with by the International Court of Justice, according to Sir Geoffrey Nice and Rodney Dixon.

"There is a provision in the ICC (International Criminal Court) charter that states should observe their obligations to other states in terms of immunity even where there is an indictment by the ICC," Nice told reporters late Saturday at the AU summit, held just outside the Ugandan capital of Kampala. The two attorneys attended the summit as part of their work with non-governmental organizations.

The International Court of Justice, based at The Hague, Netherlands, is the principal judicial arm of the United Nations to settle disputes between U.N. member nations, but it has no jurisdiction to try people for war crimes or crimes against humanity.

The International Criminal Court, also based at The Hague, is an independent treaty-based organization set up in 2002 by by countries to decide cases of alleged genocide, crimes against humanity and war crimes. According to the ICC's website, 111 nations have signed the treaty.

The ICC has issued two warrants for al-Bashir's arrest for his alleged role in a five-year campaign of violence in Darfur in western Sudan.

The original warrant, the first ever issued by the court against a serving head of state, included five counts of crimes against humanity, including murder, extermination, forcible transfer, torture and rape. It also included two charges of war crimes for intentionally directing attacks against civilians and for pillaging.

Earlier this month, the ICC issued a second arrest warrant for al-Bashir, adding three new counts of genocide. The court said the new charges were in addition to the earlier ones.

Al-Bashir did not attend the summit, although his case is part of the agenda, and thereby did not risk arrest.

The AU earlier this year urged the court to delay war crimes proceedings against al-Bashir, saying a decision to allow the genocide charges harms efforts to bring peace to Darfur.

Al-Bashir has traveled to several countries since the warrant was issued, even though any country that is party to the ICC has an obligation to hand him over to the ICC, the court maintains.

Leaders from several African countries have said the ICC has been unfair to Africa and have threatened to pull out of the court.

According to the Sudan Tribune, Nice and Dixon represent two groups -- the Sudan Workers Trade Unions Federation and the Sudan International Defense Group. The attorneys have filed a motion with the ICC judges asking them to reject the prosecutor's application to issue an arrest warrant for al-Bashir, the newspaper reported Sunday.

The London, England-based attorneys urged AU leaders to appeal to the IJC to have the arrest warrants revoked, saying the issue could result in unfavorable consequences for the organization. They questioned whether a serving president could be vulnerable to arrest when attending events such as the summit out of obligation.

Nice said the AU should express the same solidarity as when it hosted al-Bashir in its last summit, and also should follow the example of Chad, which hosted him last week.

"The government of Chad took a clear position that their immunity is in place and hosted Bashir," Nice said. "Unless all other states take this clear stand, this situation will remain a legal black hole and can potentially affect the other states."

They said al-Bashir's case was referred to the court by a non-state party, although a case against a sitting president can only be referred by a state party.

Some NGOs backed the attorneys, saying Africa is being unfairly targeted.

"We are not against international law, but against the biases of the ICC closing its eyes on atrocities in Gaza, Afghanistan and Iraq, but indicting only African leaders," said Mohammed Ansari, who claims to head an association of 42 non-governmental organizations aimed at finding a peaceful solution to the Sudan crisis. "If African leaders stand together and say 'No,' they would have done a great job since the ICC is focusing only on Africa."

He accused prosecutor Luis Moreno-Ocampo of asking presidents to arrest one of their own, and wondered whether sitting heads of state in Europe would receive the same treatment.

Al-Bashir was re-elected president of Sudan this year in controversial but historic elections. He has appeared to thumb his nose at the charges, appearing in public dancing and singing at a rally in Khartoum after the original arrest warrant last year. His information minister has dismissed the ICC as a "white man's tribunal."