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The Power of the SC to Adopt and Refer A “The power of the SC to adopt and refer a resolution to the ICC prosecutor for crimes committed by presiding Head of States/Governments: with special emphasis on President Al-Beshir of the Sudan” By Medhanie Taddele ADDIS ABABA UNIVERSITY SCHOOL OF GRADUATE STUDIES LAW FACULTY Addis Ababa October, 2011 i www.chilot.me “The power of the SC to adopt and refer a resolution to the ICC prosecutor for crimes committed by presiding Head of States/Governments: with special emphasis on President Al-Beshir of the Sudan” A Thesis Submitted to Addis Ababa University, Faculty of Law in Partial Fulfillment of the Requirements for the Masters Degree of Laws (LL.M) By Medhanie Taddele Addis Ababa University October, 2011 www.chilot.me Table of Content Page Approval ..............................................................................................................i Declaration ...........................................................................................................ii Acknowledgement ...............................................................................................iii Acronyms ..............................................................................................................iv Abstract .................................................................................................................i CHAPTER ONE Introduction ....................................................................................................1 1.1 Background ..........................................................................................................1 1.2 Statement of the Problem .....................................................................................3 1.2.1 Research Questions ..................................................................................4 1.3 Literature Review ................................................................................................4 1.4 Objective of the Study .........................................................................................6 1.5 Methodology .......................................................................................................6 1.6 Significance of the Study .....................................................................................6 1.7 Limitations ..........................................................................................................7 1.8 Scope of the study ................................................................................................7 1.9 Organization of the Paper ....................................................................................7 CHAPTER TWO Immunities of Heads of States/Governments vs. Powers of the United Nations Security Council ..................................................................................9 2.1 Immunities of Heads of States/Governments ......................................................9 2.1.1 Background on Heads of States/Governments ..........................................9 www.chilot.me i. The non executive head of state system .................................................9 ii. The parliamentary system .....................................................................10 iii. The semi-presidential system .................................................................10 iv. Presidential system .................................................................................10 2.1.2 Theories for immunities of Heads of States /Governments .........................12 2.1.2.1 The theory of sovereign immunity ........................................................12 2.1.2.2 The theory of non-party to the treaty ....................................................13 2.1.2.3 The theory of domestic jurisdiction ......................................................14 2.1.3 Why immunities for Heads of States/ Governments? .................................15 2.1.4 Exceptions to immunities of Heads of States/Governments .......................17 a) Interpretation of a treaty ................................................................................17 b) Issues on human rights .................................................................................18 c) Non-self governing territories .......................................................................19 d) Self-Determination and Minority Rights ......................................................19 e) Maintenance of international peace and security ...........................................20 2.2 Powers of the United Nations Security Council ..............................................22 2.2.1 Historical back ground on the need of the United Nations Security Council ......................................................................................................22 2.2.2 United Nations Security Council’s composition and voting system ..........23 2.2.2.1. Its composition ....................................................................................24 2.2.2.2. The consequence of the abstention of Permanent members of the UN Security Council at decisions of non-procedural matters ....................26 2.2.3 Powers of the UN Security Council .............................................................29 a) Powers for the discharge of chapter VI ..........................................................30 b) Powers for the discharge of chapter VII .......................................................31 c) Powers for the discharge of chapter V ...........................................................32 2.3 The reconciliation of the immunities of Heads of States/Governments with the www.chilot.me powers of the UN Security Council to adopt a resolution ................................33 CHAPTER THREE Analysis on the situation of the Republic of the Sudan, Darfur and some other related issues ..................................................................................38 3.1 The unique features of the African Heads of States/Governments ......................38 a) The term of office of the Heads of States/Governments in the case of Libya ..............................................................................................................40 b) The term of office of the Heads of States/Governments in the case of Egypt 42 c) The term of office of the Heads of States/Governments in the case of Zimbabwe ........................................................................................................................44 d) The term of office of the Heads of States/Governments in the case of Ethiopia ....46 e) The term of office of the Heads of States/Governments in the case of Uganda ........................................................................................................................49 f) The term of office of the Heads of States/Governments in the case of Cote d’Ivoire ..........................................................................................................52 3.2 The current Head of State/Government of the Republic of the Sudan and the incidents during his rule .......................................................................................56 3.3 Under whose jurisdiction does the conflict in Darfur fall? .................................61 3.4 The emerging trend of exercising the power of the UN Security Council to adopt a resolution and refer it to the prosecutor for crimes committed by presiding Heads of States/Governments .............................................................................................64 3.5 The reaction of the international community on the referral of the UN SC for the situation in Darfur ................................................................................................67 3.5.1 The grounds of abstention of the members of the Security Council .........68 i. The grounds of abstention for Algeria ................................................68 grounds of abstention for Brazil ................................................................68 ii. The grounds of abstention for China ...................................................69 iii. The grounds of abstention for the United States of America 69 3.5.2 The grounds of reaction of some organizations against the Resolution ...72 www.chilot.me i. The grounds of the African Union for reacting against the Resolution 72 ii. The grounds of the Arab League for reacting against the Resolution ..73 CONCLUSION and RECOMMENDATIONS ........................................75 BIBLIOGRAPHY APPENDICES APPENDIX A. Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court, Press Release SC/8351, Resolution 1593 (2005). APPENDIX B. Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), International Court of Justice, ICJ Press release 2002/042002 (14 February 2002) APPENDIX C. International Criminal Court’s Arrest Warrant for Omar Al Bashir, President of the Sudan, No.: ICC-02/05-01/09 (March 4, 2009). APPENDIX D. International Criminal Court’s Arrest Warrant for Muammar Gadafi and his two sons, Security Council 6491st Meeting, Department of Public Information, News and Media Division, New York, SC/10187/Rev. 1, (26 February 2011). www.chilot.me “The power of the SC to adopt and refer a resolution to the ICC prosecutor for crimes committed by presiding Head of States/Governments: with special emphasis on President Al- Beshir of the Sudan” By: Medhanie Taddele Approved by: ------------------------ -----------------------------
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