Adam Morrow and Khaled Moussa al-Omrani/IPS, Cairo - The decision, which has drawn heavy criticism from most Arab and African leaders, marks the first ever move against a sitting head of state by the International Criminal Court (ICC).

Aymen Abdelaziz Salaama, professor of international criminal law at Cairo University and a likely nominee for al-Bashir’s legal defence team, spoke to IPS correspondents Adam Morrow and Khaled Moussa al-Omrani about the ICC’s controversial case against Khartoum.

The ICC was established only recently but is already challenging sitting heads of state. What is the court’s legal authority based on, and where does it have jurisdiction?

The ICC was founded based on the 1998 multilateral Rome Statute (also known as the International Criminal Court Statute), and officially came into being in 2002. It was established with a mandate to investigate and prosecute state leaders and high ranking officials accused of committing war crimes, genocide or crimes against humanity. The court is mandated with prosecuting individuals, not governments or political systems.

The ICC’s jurisdiction, however, only applies to crimes committed since its establishment in 2002. The maximum sentence the court can deliver is 30 years in prison. It cannot pass sentences of life in prison or execution.

There are currently 106 full ICC member countries, including three Arab states: Jordan, Djibouti and the Comoros Islands. The remaining Arab countries — including Egypt and Sudan — have signed the charter, but their respective parliaments have not approved it.

Under what circumstances can the ICC raise a case against a head of state?

There are only three ways the ICC can raise such a case. The first is for a full member state to request an investigation into crimes allegedly committed on its own territory.

The second is for the UN Security Council (UNSC) — citing a possible threat to international peace and security — to request the court to investigate crimes committed in any country, whether a signatory or not. This is what happened when the UNSC issued Resolution 1593 in 2005, which called on the chief prosecutor to investigate war crimes allegedly committed in Darfur. This is why Sudan’s claim that it is a not a full ICC member-state — and so therefore the court has no jurisdiction over crimes allegedly committed on its territory — is not legally accurate.

The third way is for the chief prosecutor himself to call for an investigation into alleged crimes in any country. In order to do this, however, he must obtain the approval of the court’s preliminary panel. This panel, which consists of three international judges, oversees all the activities of the chief prosecutor’s office.

What were the charges levelled against al-Bashir and on what evidence?

The chief prosecutor accused al-Bashir of exploiting the means of authority — namely the police and army — to methodically commit war crimes, genocide and crimes against humanity since 2002.

To back up its claims, the prosecutor’s office has collected evidence from witnesses and victims from 17 different countries, from government and non-government agencies and from recent UN missions to Darfur.

What can Khartoum do to counter the charges?

Firstly, it can lodge an appeal against UNSC Resolution 1593 based on the fact that the resolution exempted American nationals present in Darfur from the court’s jurisdiction on the grounds that the U.S. is not an ICC signatory. In my view, this exemption is extremely unfair, because it forces Sudan to deal with the ICC while simultaneously preventing the court from making war crimes accusations against the U.S.

Secondly, Khartoum has the right to contest any evidence brought against it by the chief prosecutor in front of the preliminary panel.

Thirdly, it can establish local trials for those accused of committing the crimes in Darfur. According to the ICC charter, the court doesn’t have jurisdiction except where the national judicial system is found to be unable or unwilling to prosecute the accused.

The court itself, however, determines whether the country in question — which must be signatory to the treaty — has this ability or not. Even if Sudan tries the accused locally, this doesn’t necessarily mean the ICC will drop the case.

Finally, Sudan ought to launch a diplomatic and political campaign aimed at convincing the UNSC to issue a decision to delay the investigation for a one-year, renewable period.

How can Khartoum convince the UNSC to issue such a decision?

Firstly, it can implement the Darfur peace agreements; secondly, it can provide protection and security to all humanitarian agencies currently working in Darfur; and thirdly, it can hold local trials for other government officials accused by the ICC of committing war crimes in Darfur.

But again, even if Khartoum — with the support of the Arab League and African Union — succeeds in obtaining a 12-month delay, this doesn’t mean that the UNSC will withdraw its case.

What will happen in the event that the ICC issues an arrest warrant for al-Bashir?

Sudan could simply turn al-Bashir over to the ICC. If it refuses to hand him over, however, he would be banned from visiting any of the full ICC member-states. Countries that have signed but whose parliaments haven’t ratified the convention, like Egypt and most other Arab countries, meanwhile, would have a moral obligation not to receive him or offer him refuge.

In addition, the ICC can request a UNSC resolution, based on Chapter 7 of the UN charter, to impose gradual sanctions on Sudan. This would begin with the cutting of diplomatic relations, but could eventually escalate into a naval blockade of the country and then — in a worst-case scenario — the use of military power to force Sudan into compliance with ICC demands.