July 9th -- South Sudan Day

http://www.theatlantic.com/national/archive/2011/07/july-9th-south-sudan-day/241669/

STEVE CLEMONS - Steve Clemons is Washington editor at large for The Atlantic and editor in chief of 

Atlantic LIVE. He writes frequently about politics and foreign affairs.

July 9th -- South Sudan Day

JUL 9 2011

I look forward to getting an invitation from the future Republic of South Sudan Ambassador to the US to join him or her on South Sudan's "national day" - which will be July 9th, or today - when this new state came on to the international stage.

This morning, US Ambassador to the United Nations Susan Rice helped punctuate South Sudan's birth with an impressive statement of support.  Former Secretary of State Colin Powell - who signed the Comprehensive Peace Agreement on behalf of the US - is with her at the new statehood ceremonies along with Congressman Donald Payne and Ambassador Princeton Lyman, who doggedly worked this Sudanese civil war towards a partly constructive track.

Rice committed America to standing with South Sudan as it works through a mountain of challenges that will test the solvency of its creation - but importantly, she left "responsibility" with the South Sudanese.  That's exactly right.

America has to get out of the business of being on the line for how another nation behaves and operates - responsibility for results lie with leaders and governments and institutions they create with the support of citizens.

Rice also went beyond the thin, usually vapid characterization of 'democracy' as the act of voting, which Council on Foreign Relations President Richard Haass has correctly dismissed as just "ballotocracy."

It is important for diplomats like Susan Rice and Colin Powell to remind Americans and others around the world that institutions define democracy, not just the vote - and these institutions require a lot of investment and time to evolve.  

The US is paralyzed politically on sensible global financial aid that birthing a new country will require - but there is a lot of capacity building and governance best practices that can be shared.  But that costs money too.

As Rice indicates in her speech, the success of South Sudan is not guaranteed; there will be lots of tests - but at least so far, the diplomats - rather than the military - have scored a big win in one of the world's rawest spots.

The US Congress needs to step back and reconsider its frequent, irresponsible disdain for diplomacy, international institutions, and yes - even global aid dollars.

Bono, whose work I admire, shared in a private reception before his Baltimore U2 concert two weeks ago, that American aid to the world is small -- but nonetheless leverages phenomenally important complementary resources, partnerships and enduring connections.

I don't believe in aid for aid's sake - and I believe in national interest-driven action plans that achieve results.  But I think that what has been hatched in South Sudan is in our collective global and national interests - and that it's important to note when diplomats, who are so often accused of dithering, actually accomplish something 'big.'

At least for the moment -- this day of July 9th -- launching South Sudan is big. 

North Sudan’s president Omar Hassan al Bashir make a state visit to China for a summit as south Sudan secedes

http://uk.reuters.com/article/2011/06/28/uk-china-sudan-idUKTRE75R00H20110628

China says Sudan split on agenda as Bashir visits

BEIJING | Tue Jun 28, 2011

(Reuters) - Senior Chinese officials will take up the secession of south Sudan during talks with Sudan's President Omar Hassan al-Bashir, who began a state visit to his country's powerful patron on Tuesday after a delay to his arrival.

Bashir had been due to arrive on Monday for a summit with Chinese President Hu Jintao, one of the few foreign leaders willing to host the Sudanese leader, under indictment by (ICC) the International Criminal Court over war crimes charges stemming from fighting in the Darfur region of Sudan.

But Bashir failed to show up on time in the Chinese capital, a delay that the Sudanese Foreign Ministry later attributed to a change in the flight plan of his airplane.

China is a major buyer of Sudanese crude oil, and will be keen to ensure the partition of Sudan into two states, Bashir's north and a more oil-abundant south, will not descend into fighting that could disrupt supplies and damage Beijing's stake on both sides of the new border.

"During President Bashir's visit to China, both sides will discuss how to consolidate the traditional friendship between their two countries under new circumstances," Chinese Foreign Ministry spokesman Hong Lei was quoted as saying by a news report by Xinhua news agency confirming Bashir's arrival.

Beijing has been building ties with the emerging state in southern Sudan but remains a major supporter of Bashir, including acting as Khartoum's top arms supplier

In interviews with official Chinese media, the long-time Sudanese leader mixed reassurances about his commitment to a peaceful secession of the south from July 9, which Beijing has encouraged, with a warning that the split could still go wrong.

(Bashir, though does not like split, assured China of peaceful secession of south)

(China encouraged secession)

The are many "time bombs" in the dividing of Sudan and the possibility of war again erupting between the two sides cannot be excluded, Bashir told the People's Daily, China's main official newspaper, in an interview published on Monday.

Trade between China and Sudan grew to $8.6 billion in 2010, a rise of 35.1 percent on 2009 figures, powered by the rising value of Chinese imports of oil, according to Chinese customs statistics.

Sudan was China's sixth biggest source of imported crude oil last year, when it supplied 12.6 million tonnes, compared with 44.6 million tonnes from the top supplier, Saudi Arabia

China's special envoy for Africa Affairs and former envoy to Sudan's conflict-torn Darfur region, Liu Guijin, told reporters last week that China had "done a lot of work to persuade" the north to implement the peace agreement and referendum.

Khartoum seized the main town in the north-south border region of Abyei on May 21, raising fears the two sides could return to conflict.  But Sudan's military and the south's Sudan People's Liberation Army last week agreed to withdraw their forces in favour of Ethiopian peacekeepers

Human rights groups have urged Beijing to arrest Bashir on the war crimes charges against him. China has shrugged off these calls, saying it has every right to host the head of a state with which it has diplomatic relations.

(Reporting by Chris Buckley; Editing by Ron Popeski)

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North Sudan’s president Omar Hassan al Bashir make a state visit to his country’s powerful patron, China for a summit with Chinese president Hu Jintao, one of the few foreign leaders willing to host the Sudanese leader under indictment by the ICC

For (north) Sudan, China is a major buyer of Sudanese crude oil, and Khartoum’s top arms supplier

For China, Sudan is the sixth biggest source of imported crude oil (the top supplier Saudi Arabia)

    

China want to make sure the partition of Sudan into two states does not disrupt supplies and damage China’s stake

Bashir is not happy about split, but assures China of peaceful secession

China build times with the emerging state in southern Sudan, a more oil abundant region, and also remains a major supporter of Bashir

China persuaded the north Sudan to implement the CPA (peace agreement) (I guess, because of the concern that arms conflict may disrupt oil supplies)

Recent tension in the region of Abyei, a main town in the north-south border region

Amnesty International: Curb Arms Trade in Sudan; Arms Trade Treaty

http://www.voanews.com/english/news/africa/decapua-sudan-arms-trade-8jul11-125225269.html

 July 08, 2011

Amnesty International: Curb Arms Trade in Sudan

Joe DeCapua

Conclusion

Amnesty International says the arms trade is fueling conflicts between northern and southern Sudan.  It’s calling on the world’s major powers to control arms shipments to regions such as Southern Kordofan State.

Current situation

Fighting in the state has been going on for weeks displacing thousands of people. Various groups have accused Khartoum’s Sudan Armed Forces of targeting civilians.

“What we have is Chinese and Russian arms supplies that have been ongoing to Sudan for the last few years and they are the biggest arms suppliers.  And different types of weaponry being used in violation of international humanitarian law and international human rights law,” said Helen Hughes, a researcher for Amnesty International.

Amnesty said these include the Russian-made Antonov aircraft and SU-25 fighter jets “being used in indiscriminate attacks in Southern Kordofan.”

“In terms of South Sudan,” Hughes said, “the USA has invested heavily in military assistance and training to the Sudanese Peoples Liberation Army. (to SPLA)   But Amnesty is reporting that the army is committing human rights violations and unlawful killings, for example. And from the little information that is publically available about that training there doesn’t seem to be any indication that the SPLA is being trained on international human rights law and international law, which is absolutely vital for a professional army.”

Arms Trade Treaty

Arms Trade Treaty (ATT) talks are scheduled to continue next week at the United Nations in New York.  Negotiations have been underway for the past few years.

“There’s a negotiation of the final text in June 2012,” Hughes said.  “And the focus of this week’s talks will be on the implementation of the treaty.  It’s absolutely vital that the U.S., for example, if it wants to prevent the kinds of human rights violations and indiscriminate attacks that have been ongoing recently in Southern Kordofan and elsewhere, needs to throw its political weight behind [it], ensuring that the ATT is going to be effective,”.

She said the U.S., as the world’s largest arms supplier, “could really send a positive signal to the likes of Russia and China and many other member states.”

Hughes added, “This treaty isn’t going to be a panacea for all of the problems. It’s going to be a preventative tool. It’s about trying to prevent the transfer of arms where’s there’s going to be this substantial risk. And in places like Sudan it could make a difference.”

But the United States, Russia and China often have not signed major international weapons treaties.

“Certainly when you look to the landmine treaty and the cluster munitions treaty, there you have the evidence of what you’re describing.  At the moment, no state is actively opposing the Arms Trade Treaty,” she said.

Treaty talks are scheduled for July 11-15.

Is Chad really under an obligation to arrest Bashir?

http://dovjacobs.blogspot.com/2010/07/is-chad-really-under-obligation-to.html

Is Chad really under an obligation to arrest Bashir?

July 21, 2010

The news today has been filled with reports about the visit of President of Sudan, Omar Bashir, to Chad, and calls for Chad, which is a State Party to the ICC to arrest him.  Beyond any discussion of the political opportunity of such an act, every commentary seems to take for granted that Chad is under a legal obligation to do so.

CNN has a "Court official" (probably OTP...) on the record saying that:

Chad is legally obliged to arrest Omar al-Bashir and hand him over to the International Criminal Court.

According to Human Rights Watch:

Chad should not flout its obligations to arrest al-Bashir if he enters Chad. 

Same tune at Amnesty International:

If it were not to arrest him, Chad would violate its obligations under the Rome Statute of the International Criminal Court, which it ratified in November 2006.

 I'm not sure that's actually true. Sure, the Statute, at Article 86 provides that (my emphasis):

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

However, "in accordance with the provisions of the Statute", there is in fact no automatic obligation to cooperate in relation to the execution of an arrest warrant.  Indeed, Article 89 provides that the Court must make a request for cooperation to a State. The request must contain specific information outlined in Article 91 (such as a copy of the arrest warrant). Only then does the Statute provide (Article 89(1)) that (my emphasis):

States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

To my knowledge, there hasn't been such a request.

Second of all, even if the ICC had made a request for cooperation, the fact that Sudan is not a State Party can trigger the application of Article 98(1), according to which:

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.

It's arguable that Bashir, as an acting head of State, does benefit from diplomatic immunity, in application of the ICJ Arrest Warrant  Case (for a discussion of the immunity question in the Bashir case, see here). If that were the case, not only would Chad not be under an obligation to cooperate, but the request itself would be contrary to the Statute.

So, all in all it's far less obvious than claimed, that Chad is in fact under an automatic obligation to arrest and surrender Bashir. Of course, in a week where the Prosecutor himself has publicly considered that the issuance of an arrest warrant is proof of guilt (See commentaries of this by William Schabas and Kevin John Heller), one stops being surprised by poor legal argumentation...

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Regarding the argument that Bashir might benefit from diplomatic immunity (head of state immunity, or immunities rationae personae),

The question presented here is whether Chad is obligated to arrest and transfer Bashir to the ICC.

-       Under domestic law

o    I don’t know about any legislation in Chad that implement the Rome Statute.

-       Under CIL

o    Head of state immunity (immunities rationae personae) and act of state alike constitute customary international law, though controversial as to what extent and under what circumstances the theories can be undermined or reduced

o    If Chad supports a strong form of head of state immunity, in other words, vehemently advocates sovereign equality and non-interference in domestic affairs, Bashir is likely to be immune from criminal jurisdiction of Chad

o    If Bashir is immune, Chad is not obligated to arrest and transfer him to the iCC  

o    The above analysis is in line with the Arrest Warrant case (Republic of Congo v. Belgium) that upheld immunity of foreign minister to the criminal jurisdiction of foreign domestic court  

-       Under treaty

o    Under Rome Statute, as the author pointed out, it depends on how to interpret art.86 and art. 89

§  my suspicion is that once the OTP issue arrest warrant, states parties are under obligation to cooperate with it, whether the OTP or the ICC issues additional request, because the intention of the OTP was made clear by the arrest warrant    

o   

§  If Darfur situation were brought by state referral or prosecutor (OTP proprio motu), and Bashir were entitled to immunity in criminal jurisdiction of Chad,, the ICC may not request Chad to arrest and transfer him to the ICC, because it would be inconsistent with international law, i.e., immunity

·         Sudan is not state party to the Rome Statute. Art. 98 is meant to benefit, at least, non-state party   

§  However, Darfur situation was brought to the ICC by UNSC referral. All UN member states are obligate to carry out UNSC decision. (art. 25 of the UN Charter) Chad is under obligation to arrest and transfer Bashir to the ICC pursuant to art. 25 of UN Charter.