Al-Bashir Indicted: Justice versus Peace?
DEVELOPMENTS
On July 14th, 2008, International Criminal Court (ICC) Prosecutor Louis Moreno-Ocampo requested an arrest warrant for the President of Sudan, Omar Hassan al-Bashir, on the charges of committing crimes against humanity, war crimes and genocide in Darfur. This is the first time that the ICC has ever brought genocide charges; it's also the first time that the Court has also brought charges against a sitting head of state.
In accordance with ICC procedure, the pre-trial judges must now decide whether the Prosecutor has submitted enough evidence to justify issuing an arrest warrant, a process that can take up to three months. Considering the ICC’s history, it is highly likely that the pre-trial judges will agree with Ocampo and issue the warrant, which would oblige state parties to the ICC to arrest al-Bashir if he enters their territory. Non-signatory United Nations (U.N.) member states like the U.S. should also arrest al-Bashir and transfer him to the Court. If the Court does issue a warrant, the U.N. Security Council would still have the power to intervene and could suspend the investigation by ‘deferring’ the warrant for a renewable period of one year.
BACKGROUND
Sudan has experienced almost constant civil war since its independence in 1956, including a long-running conflict between northern and southern Sudan which only ended in 2005. A separate conflict erupted in Darfur—a region in the west of the country—in February 2003. The rebels accused the Government in Khartoum of neglecting Darfur. They also claimed that the Government favored Arab, pastoral tribes over non-Arab, predominantly agricultural tribes.
The Sudanese Government responded by waging a brutal counter-insurgency campaign, using militia drawn from Arab tribes in the region to attack those tribes which supported the rebels. The militia, often referred to as the Janjaweed, responded by killing civilians, raping women, and burning villages to the ground. As of 2008, the UN estimates the death toll is around 300,000, while over 2.4 million people have been forced to flee their homes. A peace agreement signed between the Sudanese Government and one of the rebel groups in May 2006 failed to stop the conflict.
In March 2005, the U.N. Security Council referred the situation in Darfur to the ICC Prosecutor, citing reports of repeated violations of international humanitarian law and human rights. The International Criminal Court, located in the Hague, was established in 2002 by the Rome Statute, an international treaty signed by 106 countries, known as State Parties. The Court has the mandate “to end impunity for the perpetrators of the most serious crimes of concern to the international community.” Cases can be iinitiated by the ICC Prosecutor, or can be referred to the Prosecutor by a State Party or by the U.N. Security Council. Since its establishment the Court has issued indictments against individuals accused of committing war crimes in the Democratic Republic of Congo, Uganda, the Central African Republic and Darfur.
Prosecutor Ocampo’s case against President al-Bashir alleges that al-Bashir ordered Janjaweed attacks on civilians, in order to destroy the tribes seen supporting the Darfur rebel groups. Specifically, the Prosecutor argues that al-Bashir bears criminal responsibility in relation to ten counts of genocide, crimes against humanity and war crimes.
The situation is complicated by the fact that al-Bashir plays a key role in determining the success or failure of the Comprehensive Peace Agreement, which ended the north-south civil war. As long as he is in office, his support would also be necessary for any peace agreement in Darfur to have any chance of success. Finally, if he chooses he could apply pressure against humanitarian relief agencies that keep alive millions of people in Darfur. As Julie Flint and Alex de Waal, authors of ‘Darfur: A Short History of a Long War’ write, “this prosecution will endanger the people we wish to defend in Darfur.”
Assuming that the the ICC indicts al-Bashir, then the question becomes whether the U.N. Security Council will defer the case. A number of Security Council members – including Britain and France – are against deferral. They are joined by a number of civil society and human rights organizations, like Human Rights Watch and the International Centre for Transitional Justice, who believe that justice and peace can go together. They argue that deferring the case would damage the credibility of the ICC, that a political body like the UN should not interfere with an independent judicial process, and that that trying to bring to justice those most responsible actually helps promote peace, citing the prosecutions of Charles Taylor in Liberia and Radovan Karadzic in Serbia.
Some Security Council members – including China, Russia and South Africa – are opposed to the ICC prosecution, as is the African Union. They argue that the ICC indictment could endanger prospects for peace in Sudan, and that no peace agreement is possible without al-Bashir’s involvement and support.
ANALYSIS
The two main issues at stake regarding the ICC’s prosecution of al-Bashir are (1) peace and justice for people in Darfur and throughout Sudan, and (2) the legitimacy and effectiveness of the ICC itself. One possible solution is to use the threat of prosecution as leverage to convince al-Bashir to make peace in Darfur by taking specific, constructive steps without delay. If he agrees to do so, then Security Council could defer the prosecution for renewable periods of one year, provided al-Bashir’s cooperation continues. This option does not de-legitimize the ICC: it is the constructive use of a mechanism that was put in place for exactly the situation we are facing now.
In a broader perspective, this case forces us to think about the political and security implications of implementing justice and building peace at the same time. If the arrest warrant is not deferred, the issue becomes how t al-Bashir will react. As some fear, it might lead to a deteriorating prospect for peace in Sudan. UN Secretary General Ban Ki-moon stated on the tenth anniversary of the ICC that “we must seek the right balance between the duty of justice and the pursuit of peace” This balance is exactly what the Security Council, and especially veto-wielding members like the US, have to decide upon.