The Omar al-Bashir indictment: the ICC and the Darfur crisis

Victor Peskin
15 July 2008

A decade after 120 states met in Rome in July 1998 to approve a treaty creating the International Criminal Court (ICC), its prosecutor has moved the court to the centre of world attention. The decision of its prosecutor Luis Moreno-Ocampo on 14 July 2008 to charge Sudan's President Omar Hassan al-Bashir with genocide, crimes against humanity, and war crimes is a transformative event for the ICC and for the intractable Darfur war. If The Hague-based ICC's pre-trial chamber confirms the prosecutor's charges, it will mark the court's first indictment of a head of state and its first genocide indictment (see Alex de Waal, "Sudan and the International Criminal Court: a guide to the controversy", 14 July 2008).

Victor Peskin is an assistant professor in the school of global studies at Arizona State University. He is the author of International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (Cambridge University Press, 2008)

Also by Victor Peskin in openDemocracy:

"After Zoran Djindjic: the future of international criminal justice" (28 March 2003)

In a speech on 5 June 2008 to the United Nations Security Council, Luis Moreno-Ocampo implicated the Khartoum regime for the Darfur atrocities that the UN estimates has claimed 300,000 lives. Still, the prosecutor has caught some observers and analysts of the court off-guard by seeking an ICC warrant for al-Bashir's arrest. Many human-rights activists have regarded Moreno-Ocampo as too cautious in his approach to states and a far cry from Carla Del Ponte, the crusading former prosecutor of the International Criminal Tribunal for the Former Yugoslavia who forcefully criticised UN inaction in pressing Serbia and Croatia to arrest fugitives. Disappointment centred on Moreno-Ocampo's decision not to carry out investigations inside Darfur, on his initial reluctance to criticise Khartoum's non-compliance, and on his 2007 charges against two Sudanese suspects that did not target officials in al-Bashir's inner circle.

The justice net

To his critics in the human-rights movement, the prosecutor's approach was part and parcel of a larger deference to state power. In the three other situations under International Criminal Court scrutiny - Uganda, the Democratic Republic of Congo, and the Central African Republic - Moreno-Ocampo has only targeted rebel leaders. Some viewed this reticence to challenge state authority as the prosecutor's strategic gambit to leverage cooperation from these three African states and allay the concern of ICC opponents, such as the United States, that feared a powerful prosecutor.

Moreno-Ocampo's indictment of a sitting head of state, who has led Sudan since coming to power in a 1989 coup, has now signalled the prosecutor's independence and the fortitude to go where the evidence leads him. This was by no means inevitable given the intense international pressure he has been under not to tarnish al-Bashir with indictment. True, prosecutorial independence is in the eye of the beholder. Al-Bashir, like the former Serbian president indicted in 1999 and transferred for trial in The Hague in 2001, Slobodan Milosevic, sees his indictment as proof that the international tribunal is a political tool of western states (see Anthony Dworkin, "The Hague tribunal after Milosevic", 14 March 2006). For an embattled leader it is not difficult to see how an indictment can be viewed as a direct threat. Indeed, if al-Bashir leaves the country he risks being arrested and no longer in control of Africa's largest country.

Also in openDemocracy on the International Criminal Court and transnational justice:

Eóin Murray, "'Tear down that wall!' The world court and Israel" (29 July 2004)

William Schabas, "The enigma of the International Criminal Court's success" (17 February 2006)

Anthony Dworkin, "The Hague tribunal after Milosevic" (14 March 2006)

Martin Shaw, "The International Court of Justice: Serbia, Bosnia, and genocide" (28 February 2007)

Nick Grono, "The International Criminal Court: success or failure?" (9 June 2008)

Alex de Waal, "Sudan and the International Criminal Court: a guide to the controversy" (14 July 2008) The extent to which Moreno-Ocampo is working under his own volition can be seen in the worry of many western diplomats that the al-Bashir indictment will exacerbate the Darfur crisis. Much of the early news coverage has focused on this apparent conflict between peace and justice (see "The ICC and Sudan: A dilemma over Darfur", Economist, 15 July 2008). Yet, it is misleading to suggest there is such a conflict for the very reason that there is no credible peace process underway for the indictment of al-Bashir to threaten. The prospects for a negotiated settlement in the Darfur war remain as illusory as when it began in February 2003; Khartoum and rebel groups seem tied together in an interminable fight. This contrasts with the situation in Uganda where ICC arrest-warrants of Lord's Resistance Army rebel leader Joseph Kony and top LRA commanders have, it can be argued, posed a more tangible threat to a final peace treaty. However, even in Uganda there has been a contentious debate as to whether the ICC has played a positive or negative role in advancing the peace process (see Tristan McConnell, "Uganda: peace vs justice?", 14 September 2006).

When it comes to the ICC and Sudan "the peace vs. justice" debate - whose framing tends to favour critics of the ICC - is already being well aired. The Sudanese government itself can be expected to keep this debate alive and to advance the argument that the ICC is the true spoiler of peace. To bolster this case, al-Bashir may well foment more violence in Darfur (a prospect foreshadowed by the ruling National Congress Party's statement that the ICC indictment would lead to "more violence and blood". Al-Bashir may also place yet more obstacles to the deployment of African Union-UN peacekeepers, and restrict access to humanitarian aid that could imperil the lives of hundreds of thousands internally displaced Darfurians.

Another fear is that an antagonised Bashir may have less incentive to keep the tenuous comprehensive peace agreement (CPA) alive, possibly leading to a return of the disastrous north-south war that came to an end in early 2005. But if more violence comes, and if peacekeepers are targeted in Darfur, diplomats and the media should closely scrutinise Khartoum's role in accomplishing this self-fulfilling prophecy. Still, a dramatic worsening of the situation may be enough to convince diplomats that Moreno-Ocampo, not al-Bashir, is the problem that needs fixing.

The politics of law

An absence of international support will undermine the ICC's efforts to build pressure for the handover of al-Bashir and two other Sudanese suspects charged by the ICC in 2007. As with the other contemporary international tribunals, the ICC lacks any enforcement power and is entirely dependent on outsiders for cooperation. In theory, the Security Council should be a strong proponent of the al-Bashir indictment insofar as it authorised Moreno-Ocampo's Darfur investigations in March 2005. But since then, the council - and pro-ICC states on the council such as Britain and France - has done little to press Sudan to cooperate with the ICC. On the al-Bashir indictment, China and Russia have come out as strong opponents. Britain, France, and the United States have voiced support for the ICC's work in Darfur. But it remains to be seen whether these three permanent council members will strongly push for al-Bashir's handover if the ICC's pre-trial chamber issues a warrant for his arrest in the coming months.

Also in openDemocracy on Sudan, Darfur and the region:

Simon Roughneen, "Darfur: between peace and delivery" (25 June 2006)
David Mepham, "Darfur and the 'responsibility to protect'
Nick Grono & David Mozersky, "Sudan and the ICC: a question of accountability" (12 September 2006)
Gérard Prunier, "Sudan in a fix" (26 June 2008) The political struggle over the al-Bashir indictment will now turn to Sudan's efforts to dissuade the Security Council from pressuring the regime to cooperate with the ICC. A main strategy here is for Sudan to press the council to freeze the al-Bashir indictment. The council has the authority - under Article 16 of the ICC's founding treaty - to suspend investigations and prosecutions for renewable one-year periods if they are deemed to pose a threat to international peace and security. Article 16 is a significant constraint on prosecutorial power, but it can only be invoked if there is a two-thirds vote of the council that includes the concurrence of all five permanent members. If a member casts a dissenting vote, the effort to invoke Article 16 fails. It is the difficulty of winning Security Council approval that will likely keep the council from invoking Article 16. "I would be extremely surprised if al-Bashir gets a get-out-of-jail free option without [providing] major concessions", an official with the Institute for Global Policy who works on the ICC said in an interview.

President Omar al-Bashir may never be brought into custody to face trial at the ICC. Still, prosecutor Luis Moreno-Ocampo's decision to seek a warrant for his arrest may have far reaching significance if it exposes and reverses the world's weakness in confronting Darfur's genocide in real time.

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