Legality of ICC Action against Sudan President
Ali Asghar Kazemi
March 7, 2009
On March 5, 2009 the International Criminal Court issued a writ of arrest against General Omar al Bashir, the incumbent Sudanese president, for war crimes and crimes against humanity. Although the matter was on the agenda of the court for some time and several month ago the prosecutor of the Court had announced the completion of preliminary investigations and gathering of evidences for possible criminal prosecution of the “Darfur Case,” public announcement of the warrant of arrest against the Sudan president came as a shock to those who may be liable for similar deeds.
Indeed, such court order for the arrest of a sitting president is a formidable event and “will further erode that sense of impunity shared by dictators the world over” as one human right activist said. In the past several years we had similar proceedings against Slobodan Milosevic of Yugoslavia and Charles Taylor of Liberia by ad-hoc criminal courts. The news of the Sudanese president warrant sparked throughout the globe and alarmed authoritarian regimes that did not hesitate to condemn the matter as a political action and challenged the legality of the court order.
What is the legal foundation of the case? Who should be scared from this precedent and what are the ramifications of the case for repressive regimes? What are the prospects of bringing into justice heads of oppressive regimes in the future?
In July 2008, the prosecutor of the court (Luis Moreno-Ocampo) had charged Omar al Bashir with ten counts in total, including genocide, war crimes and crimes against humanity. After several months of deliberation and thorough examination of evidences provided to them by the prosecutor, the pretrial panel made up of three judges from Brazil, Ghana and Latvia finally decided to issue the warrant. They rejected charge of genocide against Mr. Bashir and only affirmed his “essential role” in the murder, rape, torture, pillage and displacement of large numbers of civilians in Darfur.
Although a number of states and organizations like China, the African Union and the Arab League had warned the warrant would be counter-productive and could destabilize the region; peace loving states and human rights activists welcomed the action as an historic victory for victims of repression, tyranny and subjugation. In issuing the order, the judges deliberately disregarded eventual political ramifications and social backlash that could aggravate the situation for innocent people in Darfur.
It is well to remember that about 2.5 million Darfur residents have been evicted from their homes and some 300,000 have died over the past five years in a ferocious conflict between non-Arab rebel groups and the Arab-dominated government and its allied militias. The court issued warrants for two other Sudanese citizens in 2007 — a government minister and a former militia leader — but neither has been arrested.
Iran along a number of Arab states have condemned the warrant of arrest against Sudanese president and Mr. Larijani, speaker of the parliament, paid a visit to Khartoum for expressing sympathy to Mr. Bashir. Iran accused the court to be under the influence of “Zionism and Imperialism;” whereas we know that neither the United States nor Israel is member of the International Criminal Court.
Article 63 of the Statute of Rome regarding the proceedings of the International Criminal Court, requires that the accused person be handed over to the court for trial. Yet there is no reason to believe that Sudanese ruler will voluntarily appear before the ICC or, for that matter, travel outside the Sudan and risk arrest. Accordingly, Bashir is likely to escape justice.
Sudan has always claimed that it has no effective control over feuding tribes; which is a self-indicting declaration of guilt. Since, it puts the raison-d’être of the government under serious doubt. The prosecutor believes that state support and coordination have been behind the outrages in Darfur.
The Sudanese government has repeatedly asserted that the human rights violations that have occurred were the work of independent forces, the so-called “janjaweed”” militia. It is true that these irregular units have committed many of the bloodshed, but the warrant application explains that they have done so “at the behest of the government.” While the warrant application acknowledges the right of a sovereign nation to respond to insurrection with armed force, but it also makes plain that Al Bashir has directed attacks specifically against civilians.
Sudan’s supporters, including the African Union and Arab League, have called for the UN Security Council to suspend any indictment. But France, Britain or the United States would probably use a veto to block such a move. The United Nations Security Council can postpone the prosecution against Mr. Bashir, but so far it has remained largely divided on the matter.
It is too early to conclude that the bold action of the International Criminal Court against the Sudanese president will create a deterring impact on the way of dictators and totalitarian rulers around the globe. Legal and criminal sanctions alone cannot bring justice, peace, democracy and human rights to a society. It may even worsen the situation for those under subjugation. Since, the international community still lacks an efficient police force to put into effect court orders. In rare occasions the United Nations Security Council may intervene under Chapter VII of the Charter (Article 42), but that also depends on a number of political factors which are not easily accessible.
Yet, as it is the first time that the tribunal in The Hague charges a sitting head of state with crimes against humanity, the case represents a major step by the court to implicate the highest level officials of a government for atrocities committed against innocent people. Certainly, it is hard to believe that the Sudan government would pay attention to the ICC warrant, but the case has a symbolic value and will create an important precedent in international humanitarian law. /
Ali Asghar Kazemi is professor of Law and International Relations at IAU, Science and Research Center. Tehran, Iran