ICJ urged not to throw Sudan's UAE genocide case out on a 'technicality'
A group of prominent international judges and legal experts have urged the International Court of Justice (ICJ) not to throw out Sudan's genocide case against the United Arab Emirates on a 'technicality'.
The ICJ will deliver its emergency order in the case on 5 April, with the verdict expected to turn on the question of the UAE's reservation to an article of the Genocide Convention.
In an exclusive legal opinion shared with Middle East Eye, prominent international jurists argue that states 'should be compelled to account for their actions in a court of law'.
The signatories include South African judge Richard Goldstone, who was the UN's chief prosecutor at the tribunals for the former Yugoslavia and Rwanda, and Hans Corell, formerly the UN legal counsel.
Melanie O'Brien, president of the International Association of Genocide Scholars, and Irwin Cotler, Canada's former attorney general, are also among the opinion's signatories.
New MEE newsletter: Jerusalem Dispatch
Sign up to get the latest insights and analysis on Israel-Palestine, alongside Turkey Unpacked and other MEE newsletters
On 10 April, a UAE delegation to the ICJ argued that 'there is clearly no basis' for the court's 'jurisdiction in this case'.
The UAE is one of a handful of countries that have signed the Genocide Convention but made a reservation to Article IX, which stipulates that the ICJ is responsible for 'addressing disputes related to the interpretation, application or fulfilment of the Genocide Convention'.
The Emirati delegation at the ICJ says this reservation, which argues that the UAE cannot be tried for genocide at the World Court, is a 'legitimate exercise of state sovereignty'.
Previously, the ICJ has ruled that the United States, Spain and Rwanda's reservations to Article IX were fair.
Yonah Diamond, the legal counsel of the Raoul Wallenberg Centre for Human Rights and an author of the opinion, told MEE the ICJ 'has authority over state conduct for violations of international law'.
He said that upholding reservations like the UAE's 'is like allowing a perpetrator of genocide to evade legal accountability as long as they say, 'I guarantee I won't commit acts of genocide, but cannot be brought to a court of law if I do'.'
The ICJ is the only court in the world with the power to investigate and bring cases against states accused of breaking the Genocide Convention, which has been effective since 1951 and which the UAE acceded to in 2005.
The court has the power to issue emergency measures, including halting weapons transfers and the laying down of arms.
'To dismiss this case on a technicality alone would be to abandon these communities,' Diamond said, speaking of those in Darfur subjected to attacks by the paramilitary Rapid Support Forces (RSF), which the UAE is accused of supplying.
'The law exists to bring perpetrators to court, not to shield them from accountability.'
UAE arms to Sudan
On 6 March, Sudan filed an application to open proceedings against the UAE before the ICJ over alleged complicity in acts of genocide against the Darfur's Masalit community.
The application said that the RSF, which has been at war with the Sudanese Armed Forces (SAF) since April 2023, had perpetrated genocide, murder, theft, rape and forcible displacement, and that it was 'enabled' to do so by direct support from the UAE.
MEE has reported extensively on the network of supply lines through which the UAE arms and supports the RSF.
Mohamed Hamdan Dagalo, the RSF chief better known as Hemeti, has for years exported gold from mines in Sudan to the UAE. The Dagalo family has a string of businesses based in the Emirates.
Abu Dhabi has, throughout the war, denied supporting the RSF.
But on 18 December last year, Brett McGurk, an official in the outgoing US administration of US President Joe Biden, wrote to Senator Chris Van Hollen that 'the UAE has informed the Administration that it is not now transferring any weapons to the RSF and will not do so going forward'.
This was seen by multiple diplomatic sources as a tacit admission that the UAE had been supporting the RSF up to that point. Just over a month after receiving the letter, Van Hollen confirmed that the UAE 'is providing weapons' to the RSF.
RSF massacres
The RSF has committed massacres across Darfur, the vast western region that it almost completely controls.
Most recently, its fighters have attacked el-Fasher, the capital of North Darfur, and Zamzam, a camp for people displaced during the Darfur genocide of the early 2000s.
In Zamzam and el-Fasher, the RSF has used four Chinese lightweight AH4 howitzers, the only known buyers of which are the UAE.
The paramilitary has also, according to Yale's Humanitarian Research Lab, used three Chinese-made drones 'consistent with FH-95s' flown into the RSF-controlled Nyala airport.
In April last year, the Raoul Wallenberg Centre concluded there was 'clear and convincing evidence' that the RSF and its allied militias were committing genocide against 'non-Arab groups' in Darfur, such as the Masalit.
The ICJ said 74 years ago that the principles of the Genocide Convention 'are recognised by civilised nations as binding on states, even without any conventional obligation'.
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
The National
2 hours ago
- The National
Argentina's embassy to move to Jerusalem in 2026, President says
Javier Milei, who made the announcement in the Knesset, has been supportive of Israel amid the war in Gaza and votes in its favour at the UN
Middle East Eye
3 hours ago
- Middle East Eye
US warns countries not to join French, Saudi UN conference on Palestine: Report
The US is lobbying foreign governments not to attend a UN conference next week sponsored by France and Saudi Arabia on a two-state solution to the Israeli-Palestinian conflict, according to a US diplomatic cable reported by Reuters. The cable, sent to countries on Tuesday, warns them against taking "anti-Israel actions" and says attending the conference would be viewed by Washington as acting against US foreign policy interests. France, a permanent member of the UN Security Council, is a US ally in Nato. Saudi Arabia is one of the US's closest Middle East partners. US President Donald Trump was feted during a May visit to Riyadh, where Saudi Arabia signed billions of dollars of investment deals with the US. France and Saudi Arabia are co-hosting the gathering between 17 and 20 June in New York. New MEE newsletter: Jerusalem Dispatch Sign up to get the latest insights and analysis on Israel-Palestine, alongside Turkey Unpacked and other MEE newsletters "We are urging governments not to participate in the conference, which we view as counterproductive to ongoing, life-saving efforts to end the war in Gaza and free hostages," the cable says, according to Reuters. "The United States opposes any steps that would unilaterally recognise a conjectural Palestinian state, which adds significant legal and political obstacles to the eventual resolution of the conflict and could coerce Israel during a war, thereby supporting its enemies,' it added. France had been lobbying the UK and other European allies to recognise a Palestinian state at the conference. However, Middle East Eye reported in June that the US has warned Britain and France against recognising a Palestinian state at the conference. At the same time, Arab states have been urging them to proceed with the move, sources told MEE. In late May, United Nations member states held consultations in preparation for the conference, during which the Arab Group urged states to recognise Palestinian statehood. The Arab Group said they would measure the success of the conference by whether significant states recognise Palestine, sources in the UK Foreign Office told MEE. Since the 1950s, successive American administrations have stated that their ultimate goal in ending the Palestinian-Israeli conflict is a two-state solution. Many experts and diplomats have earmarked occupied East Jerusalem, the occupied West Bank and Gaza, which Israel seized from Egypt and Jordan in the 1967 war, as the heartland of a future Palestinian state. But US ambassador to Israel Mike Huckabee told Bloomberg News on Tuesday that a Palestinian state in the occupied West Bank was no longer a US policy goal. He said Israel's 'Muslim neighbours' could give up their land to create one. According to the cable, the US said that "unilaterally recognizing a Palestinian state would effectively render Oct. 7 Palestinian Independence Day'. Hamas led an attack on southern Israel on 7 October 2023, killing around 1,200 people. Israel responded by launching a devastating assault on Gaza that has killed more than 54,000 Palestinians, mainly women and children, and reduced the enclave to rubble. The US cable also said Washington was working with Egypt and Qatar to reach a ceasefire in Gaza and free the captives there. "This conference undermines these delicate negotiations and emboldens Hamas at a time when the terrorist group has rejected proposals by the negotiators that Israel has accepted,' it said. The Trump administration pushed Israel to agree to a three-phase ceasefire with Hamas in January. Israel broke that agreement by refusing to begin talks on ending the war permanently and unilaterally resumed attacking Gaza.
Middle East Eye
5 hours ago
- Middle East Eye
Could David Cameron be prosecuted for threatening the ICC?
David Cameron, the former British foreign secretary, may be liable for prosecution under international law and within the UK for his attempts to obstruct the work of the International Criminal Court (ICC), experts have said. Middle East Eye revealed on Monday that Cameron privately threatened Karim Khan, the British chief prosecutor at the ICC, in April 2024 to defund and withdraw from the ICC if it issued arrest warrants for Israeli leaders. "A threat against the ICC, direct or indirect, is an obstruction of justice," Francesca Albanese, the UN's special rapporteur on Palestine, told MEE's live show on Tuesday. "It's incredibly serious that someone in a position of power might have had the audacity to do that." And Professor Sergey Vasiliev of the Open University of the Netherlands reacted: "If the reports are confirmed, David Cameron did cross the legal line when he threatened the Prosector with all kinds of consequences for applying for the warrants. New MEE newsletter: Jerusalem Dispatch Sign up to get the latest insights and analysis on Israel-Palestine, alongside Turkey Unpacked and other MEE newsletters "This is a serious matter that shows Cameron's utter lack of respect for the ICC's judicial and prosecutorial independence." What did David Cameron do? Cameron, then foreign secretary in Rishi Sunak's Conservative government, made the threat on 23 April 2024 during a heated phone call with Khan. Cameron told Khan that the UK would "defund the court and withdraw from the Rome Statute" if the ICC issued warrants for Israeli leaders. At the time, Khan and his team of lawyers were preparing arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his then-defence minister, Yoav Gallant, as well as for Hamas leaders Yahya Sinwar, Ismail Haniyeh and Mohammed Deif. Khan's office applied for warrants on 20 May, less than a month after the phone call. 'Per the reported dialogue, David Cameron clearly seeks to pressure the ICC Prosecutor's decision regarding whether to pursue warrants for Israeli officials' - Professor Tom Dannenbaum Six months later, on 21 November, the warrants were approved by a panel of judges, officially charging Netanyahu and Gallant with war crimes and crimes against humanity committed in Gaza since October 2023. MEE revealed details of the call based on information from several sources, including former staff in Khan's office familiar with the conversation and who have seen the minutes of the meeting. Cameron, a former British prime minister who was appointed foreign secretary by Sunak in November 2023, told Khan that applying for warrants for Netanyahu and Gallant would be "like dropping a hydrogen bomb". He said Khan was "on the brink of making a huge mistake" and that "the world is not ready for this". The report has drawn condemnation from British MPs who called for an investigation into Cameron's actions. Cameron has not responded to multiple requests for comment. Approached by MEE for a response to the exchange with Cameron, Khan said on Monday: "I have no comment to make at this time." What's the background to David Cameron's demands? The Conservative government was accused last year of being behind the delay in the ICC's issuance of arrest warrants against Israeli and Hamas officials, after filing a request with the pre-trial chamber to challenge the court's jurisdiction on Israeli nationals. The request prompted dozens of submissions from other states, but was later dropped by the Labour government, which came to power in July 2024. The revelations about Cameron came after the administration of US President Donald Trump said last week that it would sanction four ICC judges for investigations into the US and its ally Israel. In February, Khan was the first ICC official to be the target of US sanctions, carried out under an executive order issued shortly after Trump took office. The revelations also follow Khan's decision to take a leave of absence pending a UN-led investigation into alleged sexual misconduct, an accusation denied by his lawyers. What are the legal risks for Cameron? The ICC, established by the Rome Statute in 2002, is the only permanent international court that prosecutes individuals for war crimes, crimes against humanity and genocide. It has 125 signatories, including the UK and all EU countries, though Hungary has officially begun the withdrawal process. Leading international law experts have told Middle East Eye that Cameron's behaviour is an attack on judicial independence, and is prohibited under the Rome Statute and British law as an obstruction of justice. Professor Tom Dannenbaum of the Fletcher School of Law and Diplomacy said that, in general, the UK is entitled to withdraw from the ICC, and, upon exit, would then cease its financial contribution. Exclusive: David Cameron threatened to withdraw UK from ICC over Israel war crimes probe Read More » Additionally, as a state party to the Rome Statute, the UK can advocate budget cuts within the Assembly of States Parties, the court's governing body, without having to pull out. But, he said, the issue here arises before any such withdrawal or defunding. "The problem here is David Cameron's reported threat to condition possible UK action or inaction in those respects on the decisions of the ICC Prosecutor regarding whom to investigate and prosecute," said Dannenbaum. "That threat is deeply concerning. The rule of law depends on prosecutors' insulation from political pressure in their identification of individuals for investigation and prosecution,. That is true at the ICC just as it is in domestic systems of criminal justice." Under what law could Cameron be charged? The four experts MEE spoke to said the ICC could charge Cameron, given the nature of the phone call with Khan, based on Article 70 of the Rome Statute, which prohibits offences against the administration of justice. These include "impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; and retaliating against an official of the Court on account of duties performed by that or another official." Dannenbaum argued that Cameron's threat to withdraw the UK from the ICC and defund the court may amount to "corruptly influencing an official of the Court for the purpose of … persuading the official not to perform, or to perform improperly, his or her duties". Although this particular provision has never been litigated before the ICC, Dannenbaum said, the relevant offence of "corruptly influencing a witness" has. "That case law indicates that 'corruptly influencing' includes 'pressuring' the protected person in a way 'capable of influencing the nature' of their contribution and thereby 'compromising' it, with the term 'corruptly' signifying the aim of 'contaminating' the person's contribution," Dannenbaum explained. "Per the reported dialogue, David Cameron clearly seeks to pressure the ICC Prosecutor's decision regarding whether to pursue warrants for Israeli officials. It is possible that this pressure would be understood to have been designed to 'contaminate' the Prosecutor's decision, although that concept may be less clear here than it is in the context of witness testimony. "Considerations regarding state withdrawal and budget cuts are plausibly 'capable' of influencing such decisions, albeit that the Prosecutor appears to have resisted the pressure in the case at hand." Given the above points, Dannenbaum concluded that Cameron's conduct may be consistent with the prohibited offences against the administration of justice listed under Article 70. The court has jurisdiction over Article 70 offences, irrespective of the nationality or location of the accused. What penalty could Cameron face? If successfully charged, Cameron is likely to face an arrest warrant by the court and, if convicted, could be sentenced to up to five years of imprisonment in The Hague or a fine. However, given the vulnerability of the ICC, with Trump's sanctions and Khan's leave of absence, Vasiliev suggested that Cameron's prosecution in The Hague would be "rather unlikely. "The ICC could in principle open the investigation into these allegations under Article 70 or request the UK to do so (or the UK could do so on its own). Whether this will in fact be done, is a big question." Could Cameron be prosecuted in the UK? Toby Cadman, a British barrister and international law expert, said that if the allegations are substantiated by clear evidence, then Cameron could be investigated at an international and domestic level "provided there's political will". Francesca Albanese: David Cameron could be criminally liable for threatening ICC Read More » In the UK, an investigation could be opened for the common law offence of obstruction or perverting the course of justice or the common law offence of misconduct in public offence, he said. An investigation in the UK can be carried out in accordance with Section 54 of the ICC Act 2001, which is based on Article 70 of the Rome Statute. The attorney general's consent would be required for any prosecution to go ahead. "It is quite clear that the allegation is serious and if the UK is committed to maintaining a system based on the rule of law with full respect for the state's international treaty obligations it should open an investigation and if the evidence supports it, bring charges," Cadman told MEE. Could Cameron be prosecuted outside the UK? But Vasiliev suggested that Cameron's prosecution before the courts of other states would be precluded by his functional immunity - the protection granted to senior officials if an alleged offence was committed during their official duties. "Cameron has a functional immunity for that act as he uttered those threats in the exercise of his official functions, and there is no exception to such immunity applicable in foreign courts for offences against the integrity of judicial system," Vasiliev argued. "The prosecution authorities of other states parties therefore will not eagerly pursue such a case."
