India, the ICC, President Bashir, Oil, and Indian Soldiers

Last week the prosecutor of the International Criminal Court presented his case against President Al Bashir of Sudan for genocide, crimes against humanity, and war crimes in Darfur. The prosecutor is requesting an arrest warrant from the ICC’s judges. This is the first time that a sitting head-of-state has been prosecuted under the Rome Statute. In 2005, a senior Sudanese government official and a Janjaweed leader had arrest warrants issued for them by the Court. The government of Sudan, who is not a party to the Rome Statute, has refused to turn over these two men and says that they will not turn over their President. They have also said that Bashir’s prosecution has only made peace less likely and exasperated an already explosive situation.

So, what does this have to do with India? As those who have read my previous post on this issue or kept up on Sudan-India relations know, India is rather uniquely positioned towards Sudan. India’s ONGC is one of the largest investors in Sudan’s oil fields (and thereby one of President Bashir’s chief business partners). At the same time, India has a military presence in Sudan under the auspices of a United Nations Peacekeeping force to keep peace between the north and the south. (China, the other major backer of Sudan’s oil industry, has also dispatched soldiers to the country under the United Nations as peacekeepers, but in the West in Darfur).

Given these facts, does this mean that India might be put in the awkward position of having its soldiers ordered to attempt to capture the Sudanese President so that he can be shipped to Europe to be tried for genocide? Well, not likely, but also not impossible.

India, China, Sudan, and the United States are not parties to the Rome Statute so technically they have no real obligations under the statute (something the U.S. likes to point out frequently). The case of Sudan though is the first case that was referred to the ICC by the Security Council (China, the US, and Russia all went along with this in the end under tremendous public pressure). As this article points out the UN Security Council resolution that made this referral “urges” all states (even those who did not ratify the Rome Statute) and international organizations to cooperate with the ICC on this matter. This could theoretically mean that Indian forces on the ground under the UN peacekeeping force could be called upon by the ICC to aide in apprehending these suspects in Sudan.

Still, given that three years have passed since arrest warrants were issued against the first two suspects in Sudan and UN peacekeeping forces haven’t been called upon to arrest them, it is unlikely that an arrest warrant issued for President Bashir will change the situation. Further, the “urge” language in the original UN Security Council resolution does not seem binding and the rest of the referral is quite vague on what state or UN peacekeeping forces obligations would be. It would likely take another more specific Security Council resolution before UN peacekeepers were expected to take any affirmative steps to capture President Bashir or the other two suspects.

ONGC’s oil operations in Sudan now seem more a liability than ever though, even if it hasn’t necessarily approached the level of legal liability. It certainly seems against the spirit of the Rome Statute and arguably the Security Council referral to keep doing business with President Bashir and his government if an arrest warrant is issued against him. Still, it seems highly unlikely that this relationship will expose Indian leaders or officials in ONGC to the ICC’s jurisdiction. The Mint recently had two good articles on ONGC in Sudan. One detailed the efforts of divestment groups in the West to pressure ONGC and India to be more responsible players in Sudan. The other reports that ONGC abandoned its business interests in the United States before investing in Sudan because it feared it would become open to liability in the U.S. once it began business in Sudan. Other recent articles have reported on how ONGC may be forced out of its holdings in the Alberta tar fields (a largely untapped oil reserve about equivalent to Saudi Arabia’s) because of Canadians upset about ONGC’s business in Sudan.

Even if there is no legal liability, the position India now finds itself in is clearly awkward and it will be interesting to see how or even if India responds to any arrest warrant issued for President Bashir. So far India's policy towards Sudan has been to publicly neither condemn or condone the government's actions, but just remain silent.