VZCZCXRO0393
OO RUEHGI RUEHMA RUEHROV
DE RUEHKH #1717/01 3311442
ZNR UUUUU ZZH
O 261442Z NOV 08
FM AMEMBASSY KHARTOUM
TO RUEHC/SECSTATE WASHDC IMMEDIATE 2414
INFO RUCNFUR/DARFUR COLLECTIVE
RUCNIAD/IGAD COLLECTIVE
RHMFISS/CJTF HOA

UNCLAS SECTION 01 OF 02 KHARTOUM 001717 
 
DEPT FOR AF A/S FRAZER, SE WILLIAMSON, AF/SPG, DRL 
NSC FOR PITTMAN AND HUDSON 
ADDIS ABABA FOR USAU 
DEPT PLS PASS USAID FOR AFR/SUDAN 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: ASEC PGOV PREL KPKO SOCI AU UNSC SU
SUBJECT: ARTICLES 17 AND 19 OF THE ROME STATUTE: SUDAN'S LEGAL 
SYSTEM UNLIKELY TO BE OF HELP TO PRESIDENT BASHIR 
 
¶1. (SBU) Summary: Articles 17 and 19 of the Rome Statute of the 
International Criminal Court (ICC) provide room for Sudan to head 
off impending ICC trials of Sudanese nationals by conducting its own 
investigations and prosecutions, but legal experts doubt that Sudan 
possesses adequate laws and an "able and willing" judicial climate 
to carry out its own trials.  Although reports indicate that ICC 
indictee Ali Kushayb is currently in custody (reportedly under house 
arrest in Khartoum, but able to move about freely,) while his fellow 
indictee Ahmed Haroun is said to have reduced his activities as 
State Minister of Humanitarian Affairs, but continues to participate 
in some public events.  End Summary. 
 
¶2. (SBU)  Even though Sudan is not a party to the ICC, articles 17 
and 19 of the Rome Statute provide Sudan with legal cover under the 
term "complimentarity."  In other words, in lieu of an ICC 
investigation, Sudan has both the discretion and the jurisdiction to 
conduct its own prosecutions and trials for crimes such as genocide, 
war crimes and crimes against humanity.  In a best-case scenario for 
the ruling National Congress Party (NCP), article 17 permits the ICC 
to classify a case as inadmissible if "the case is being 
investigated or prosecuted by a State which has jurisdiction over 
it."  Article 19 similarly permits Sudan to challenge the 
jurisdiction of the court, following a decision on the case's 
admissibility, "on the ground that it is investigating or 
prosecuting the case or has investigated or prosecuted."  (Note: An 
article 18 ruling on inadmissibility has been obviated by Security 
Council resolution 1593. End note.)  Should the Sudanese carry out 
their own trials of Sudanese war crimes suspects and find them not 
guilty, article 20 guarantees that protection from double-jeopardy 
would apply provided trials were "conducted independently or 
impartially in accordance with the norms of due process recognized 
by international law." 
 
¶3. (SBU)  Mohamed Ibrahim, a former Egyptian judge and currently a 
senior officer at UNMIS Human Rights, told poloff on November 24 
that it would take a major "leap of faith" for the ICC to conclude 
that the Government of Sudan (GoS) would be "able and willing" to 
carry out its own investigation and prosecution of war crimes 
suspects.  Legislative drafts of amendments to the Sudanese criminal 
code include prosecution for war crimes and crimes against humanity, 
and according to Ibrahim, could meet the standards to prevent an ICC 
investigation. However, the possibility remains that the amendments 
will be greatly watered down to remove prosecution for the crimes 
mentioned in the Rome Statute.  Additionally, up to this point, no 
draft has included any mention of retroactivity, which would be 
necessary to prosecute individuals for the crimes already committed 
in Darfur.  However, Ibrahim added that Sudan could hypothetically 
investigate and prosecute internally war crimes suspects under the 
Geneva Conventions, which Sudan ratified in 1957.  Salih Mahmoud 
Osman, a opposition member of Parliament and prominent human rights 
lawyer, told poloff that the bill covering the amendments to the 
criminal code has not yet been presented to Parliament, and with the 
Parliament ready to close shop for almost all of December, those 
bills may not reach a vote until far into the new year. 
 
¶4. (SBU) Sarah Nouwen, a Dutch legal scholar studying practical 
applications of articles 17-19 of the Rome Statute at the University 
of Cambridge, told poloff that even if Sudan manages to organize a 
credible legal process against Haroun and Kushayb, this is unlikely 
to help with the arrest warrant hanging over the head of Sudanese 
President Omar el-Bashir.  If a genuine prosecution of Haroun and 
Kushayb under Sudanese law satisfies the conditions of articles 17 
and 19, the prosecutor, under article 53 of the Rome Statute, can 
conclude that "a prosecution is not in the interests of 
justice...(or) the interests of victims," and can determine that 
there is no "reasonable basis to proceed with the investigation." 
However, article 53 may be far from good news for Bashir and the 
NCP, as according to Nouwen, ICC Prosecutor Luis Moreno Ocampo has 
already drafted a paper suggesting that the interests of justice and 
the interests of peace are two different issues not entirely 
compatible with one another. 
 
¶5. (SBU) Ibrahim told poloff that he envisions one of two macabre 
scenarios taking place either before or after the ICC issues an 
arrest warrant for Bashir.  In the first scenario, the NCP could 
choose a Darfur war crimes scapegoat whose "elimination" would sever 
the chain of command leading from the crimes themselves to senior 
figures in the government; Ibrahim cited the suicide of Syrian 
Interior Minister Ghazi Kanaan in the case of the 2005 assassination 
of Lebanese politician Rafik Hariri as a similar case.  In the 
second scenario, Haroun and Kushayb could be pressured to confess to 
the ICC accusations, in exchange for the ICC's strongest penalty - 
life imprisonment in the Hague, as the ICC has no death sentence. 
Their personal sacrifice would maintain the status quo in Sudan, 
 
KHARTOUM 00001717  002 OF 002 
 
 
while at the same time ensuring rich compensation for their tribes - 
something similar to what Libya did with the Lockerbie case. 
(Comment: It seems unlikely to us in the Sudanese context that 
either of these scenarios is  likely.  An attempt at local justice 
is about as far as the regime can go, given the need to maintain the 
loyalty of the many others who have also committed crimes and don't 
want to see the regime start turning over indictees to the ICC. End 
comment.) 
 
¶6. (SBU) By all indications, Sudanese authorities have yet to take 
any real action to arrest Haroun and Kushayb.  PCP leader Hassan 
al-Turabi recently told CDA Fernandez that State Minister Haroun has 
been absent from the office and maintaining a low profile ; however, 
the embassy received an invitation to a November 26 NCP-organized 
"International Youth Forum for Thought and Culture" at which Haroun 
is scheduled to speak.  Kushayb's whereabouts have not been 
confirmed; however, a source with the Darfur Bar Association in El 
Geneina denied rumors that Kushayb is in custody in the capital of 
West Darfur.  Others have told us that Kushayb is in Khartoum, 
technically under house arrest but free to move about the city. 
 
¶7. (SBU) Comment: We have heard from some of our European 
counterparts in Khartoum that the ICC indictment of President Bashir 
may come sooner than expected, perhaps in December, and, even if 
this is inaccurate, there appears to be little the regime can do now 
to head off the ICC.  The GOS is likely to resort to articles 17 and 
19 of the Rome Convention if and when an arrest warrant is issued 
and if the Security Council does not pass and article 16 deferral, 
as now appears increasingly unlikely.  While post claims no legal 
authority in the interpretation of the ICC articles mentioned above, 
we pass them on merely as illustrative of what our contacts here in 
Khartoum anticipate as likely actions by the GOS if there is an 
arrest warrant.  The chances of the GOS convincing the ICC that its 
legal system is a suitable substitute are slim indeed, but we can 
nonetheless expect that the GOS will try to make their case - as 
often happens in Sudan, too little too late to matter. 
 
FERNANDEZ