ICC VS. SUDAN – THE COMPLEXITIES BEHIND THE AL-BASHIR CASE

COMMENTARY ARCHIVES, 6 Mar 2009

SPIEGEL Online

The arrest warrant issued by the International Criminal Court for Sudanese President Omar al-Bashir is a victory for the court’s top prosecutor. But the chances that the case will ever come to trial are slim.

The international arrest warrant issued for Sudanese president Omar al-Bashir by the International Criminal Court is without question a feather in the cap of its top prosecutor, Luis Moreno-Ocampo. But what is the point of indicting someone when the chances that he will ever stand trial are close to none? Sudan doesn’t recognize the ICC and refuses to cooperate with it. Unless al-Bashir travels to a country that does recognize the ICC, and gets arrested, or finds himself betrayed at home by his own people, he has nothing to fear from the ICC.

"The court must show what it stands for in this case," says Göran Sluiter, a professor of international criminal law at the University of Amsterdam. "Until now, the image was that the ICC has mainly gone after rebel movements. It needs to be seen as going after whoever bears the greatest responsibility for these crimes."

Exacerbating the Violence?

The situation in Darfur, where at least 200,000 people have been killed and millions have been displaced, is the first to have been referred to the ICC by the United Nations Security Council. Past referrals — Uganda, Congo and the Central African Republic — have always come from the governments of those countries. In all three of those cases, the ICC’s prosecutor’s office took action only against rebel movements, even though the governments had also been accused of atrocities.

In the case of Darfur, the Security Council asked the ICC to investigate the violence regardless of who perpetrated it. When Ocampo announced in June 2008 that he intended to prosecute the president himself — on genocide charges, no less — there was considerable uproar from many Arabic and African countries, China and even from some analysts and activists involved with Darfur. They feared the arrest warrant would only exacerbate the violence.

There was criticism from legal circles as well. In January, Sir Geoffrey Nice, who was the prosecutor in the Milosevic trial, filed an amicus curiae brief with the ICC on behalf of an umbrella group of Sudanese unions and activists (who had collected the signatures of a million Sudanese), asking the court not to issue an arrest warrant against al-Bashir. The leaders of three ethnic groups in Sudan — who, Ocampo said, were the main target of the genocide — also supported the call. The risk of more violence was simply too great, and an arrest warrant would further discredit the ICC’s image in Sudan, according to the critics.

Security Council Resolution

Sudan, the Arab League, the African Union, Russia and China all hope the Security Council will use its prerogative to suspend al-Bashir’s indictment in the interest of peace. But three of the five permanent members of the Security Council — the US, France and Britain — are likely to oppose any such move.

"It would look pretty bad," says Sluiter, "if the Security Council referred a case to the ICC only to stop prosecution once it reaches the president. An arrest warrant is very important. There are malicious and complex politics being played out in the case."

In the likely event that Sudan refuses to extradite its own president, many legal experts feel the ball will be in the Security Council’s court. Then it would be up to the council to adopt a new resolution forcing Sudan to cooperate with the ICC. Failing that, the US genocide expert William Schabas wrote in July, "the arrest warrants will be little more than hollow gestures".

Of course, a Security Council resolution can easily be vetoed by China or Russia. "There is much opportunity here for the Court, but also danger," wrote Schabas.

Secret Warrant

So why did Ocampo choose to make his indictment public last July, rather than ask for a secret arrest warrant? Wouldn’t that have greatly increased the chances of al-Bashir’s arrest? There has been no lack of speculation in this case.

Philip Clark, a researcher at Oxford, calls the indictment of al-Bashir "a huge gamble, intended to win back some of the credibility that the court lost in Uganda and Congo."

At the time, the ICC’s very first trial, against Thomas Lubunga in Congo, had just gotten bogged down because of a procedural error by the prosecutor. Three Ugandan suspects were on the run. What’s more, says Clark, by going after a sitting head of state the ICC was hoping to win points with the US, which opposes the international court. Many observers also suspect Ocampo wanted to score a point for the ICC on the tenth anniversary of the Rome Statute, which established the court in 1988.

It’s possible that Ocampo "never thought an arrest would ever be made," says Sluiter. "Maybe he felt that the public opinion value of an indictment was just as important. He has demonstrated that nobody is above the law, and that is after all his mission — to show that justice will prevail."

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