Justice vs Peace: Omar al-Bashir and the ICC

By Ben Kates

 

On March 4, the International Criminal Court (ICC) took the unprecedented step of ordering the arrest of Sudanese President Omar al-Bashir for atrocities committed in Darfur between April 2003 and July 2008. The Court’s Pre-trial Chamber I found that there were reasonable grounds to indict the Sudanese president on charges of crimes against humanity and war crimes but not on the crime of genocide.

A three judge panel, ruling nearly eight months after Chief Prosecutor Luis Moreno-Ocampo applied for a warrant of arrest, found reasonable grounds not only that war crimes and crimes against humanity had occurred in Darfur but also that Bashir was criminally responsible for them.

Bashir stands accused of five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape) and two counts of war crimes (intentionally directing attacks against a civilian population or against individual civilians and pillaging). The court determined by a 2-1 margin that the prosecution’s evidence failed to provide reasonable grounds for the crime of genocide. Following the indictment Sudan is legally obliged to arrest and surrender its president, as are all 108 State Parties to the Rome Statute.

Ad hoc international tribunals have previously indicted Slobodan Milosevic and Charles Taylor, but the warrant is the first ever issued by the Court against a sitting head of state. Although the order strengthens the legitimacy of the ICC while striking at impunity, it is not without controversy. The Sudanese government ejected thirteen aid groups from the country - including the International Rescue Committee, Oxfam, Care and the Dutch contingent of Médecins Sans Frontières – as an immediate reaction to the decision.

With the warrant, the Court sends a clear message that, notwithstanding the principle of state immunity, even the most senior officials will be held accountable for the egregious crimes subject to its jurisdiction. Most importantly, its notice that the violation of human rights is no longer a political strategy that can be exercised with impunity serves a vital deterrent function to future Bashirs.

Highfalutin ideas of accountability, however, will be of cold comfort to the hundreds of thousands of Darfuri refugees dependent upon these thirteen banished aid organizations for food, medicine and water supplies. For them what matters is not the response of future Bashirs but that of the current one. The ironic question that beckons is whether the ICC’s decision will come at too high a cost to the very people it is attempting to vindicate.

In indicting Bashir, the Court has risked alienating the principal belligerent in Sudan. The Sudanese government’s expulsion of aid groups may be representative of a new approach to both the conflict in Darfur and to implementing the 2005 Comprehensive Peace Agreement (CPA) that ended the twenty-year civil war between the country’s north and south. There is also the possibility of renewed violence. In an ominous statement, Salah Gosh, head of Sudanese intelligence, called for the “amputation of the hands and the slitting of the throats of any person who dares bad-mouth Bashir or support the International Criminal Court’s allegations against him.”

Much of the warrant’s impact will depend on whether or not it turns Bashir into a pariah both domestically and internationally. Criminal proceedings precipitated the downfall of Milosevic and Taylor, in Yugoslavia and Liberia, respectively, and the hope is that the same will occur in Sudan. Bashir enjoys the continued support of the African Union and Arab League, as well as that of China and Russia, and would have much to lose if any of those parties declared it politically infeasible to have friendly relations with an indicted war criminal. Moreover, international pressure could convince either those in government supporting Bashir or the people of Sudan themselves that it is in their own best interest to turn against him.

Conversely, Bashir may use the indictment to consolidate his support. The president has already made a showy visit to Darfur to decry the imperialist nature of the Court. Given that, in its short lifespan, the ICC has undertaken proceedings only in Sudan, Uganda, the Democratic Republic of Congo (DRC) and the Central African Republic (CAR), it is susceptible to criticism as a court exclusively for African leaders. Bashir is sure to draw on the experience in Iraq to raise the specter of Western designs for regime change in yet another Muslim country.

The debate surrounding the indictment of Bashir is deserved, considering its potential to further destabilize one of the world’s most horrendous humanitarian crises. Controversy is displaced, however, insofar as it pertains to either Moreno-Ocampo or the Court itself; rather it should be directed at the United Na- tions. Whereas Uganda, DRC and CAR themselves sought justice at the ICC, the matter of 

Darfur was referred to the Court by way of the UN Security Council, with Resolution 1593. It is thus the Security Council that must take responsibility for what flowed from that decision.

Once allotted jurisdiction, the Court is right to have exercised its mandate based purely on the rule of law. Rightly, Moreno-Ocampo and the Court were driven by evidence and jurisprudence, rather than by political considerations. The ICC would have been shown to be a flawed institution had Bashir’s indictment been withheld for fear of destabilizing Sudan.

Under Article 16 of the Rome Statute, the Security Council has the capacity to defer prosecution for a year, subject to renewal, if it is deemed to pose a threat to international peace and security. It is with this provision, and not in the internal mechanisms of the ICC, that the political climate surrounding Sudan should be accounted for. In the present climate, any attempt to enact the provision will surely be vetoed by either France, Britain, or the United States, but this would not be the case if it were interpreted as something other than an attack on the legitimacy of the ICC. 

Postponement should be viewed as a viable policy option to mitigate the potential damage arising from the indictment. A one-year deferral would not remove the threat of bringing Bashir to trial, yet its renewal would serve as a potential bargaining concession to offer Bashir in exchange for compliance on Darfur. The Security Council took bold steps to pass Resolution 1593. It should either be held accountable for the human consequences of that decision or have the political courage to take a more nuanced approach that will facilitate both peace and justice.