War crimes court might never arrest Al-Bashir

By Richard Kerama, Revise Editor

I was one of over 80 journalists from around the world when the war crimes world court issued an arrest warrant for SudanÕs President Omar al-Bashir. Bashir became the first sitting head of state to be charged with war crimes and crimes against humanity.

The controversial landmark ruling accuses Bashir of presiding over crimes, including the attempt to destroy ethnic groups deemed to support rebel factions in SudanÕs troubled Darfur region.

ÒHe is suspected of being criminally responsible ... for intentionally directing attacks against an important part of the civilian population ... murdering, exterminating, raping, torturing, and forcibly transferring large numbers of civilians,

This announcement sparked a frenzied uproar across AfricaÕs largest country with daily street demonstrations in support of their Head of State.

President Bashir was to thereafter lead from the front with daily rhetoric saying, ÔYou canÕt touch me!Õ

And with good reason.

Unleash violence

The International Criminal CourtÕs indictment had successfully polarised the world into two. On the one side was Moreno-OcampoÕs warrant of arrest, several western nations and Sudan opposition leader, Hassan al-Tourabi.

On the other are Russia, China, the Arab League, Organisation of Islamic states, African Union and everybody else. Every country has for one reason or the other taken a stand for or against the indictment.

Since the ICC tribunal was set up to try the most serious international crimes, it has been under intense pressure to justify its existence.

Many people fear the warrant could unleash violence against civilians and the joint UN-African Union mission (Unamid) in Darfur.

There has been no permanent court to prosecute individuals accused of war crimes or genocide since the International Court of Justice only has jurisdiction over conflicts between nation-states.

But nations have been prosecuting war crimes since after World War II, when the Allied powers created international tribunals to try Nazi and Japanese war crimes.

In more recent decades, the UN has established tribunals to prosecute war crimes in the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia. But these tribunals are expensive, and experts say they are less efficient and less of a deterrent than a permanent court, wrote Kristen Chick in The Christian Science Monitor.

African suspects

Kristen quotes Leila Nadya Sadat, a law professor at Washington University School of Law and a delegate to the diplomatic conference at which the ICC was established as saying: ÔThe time gap between when the crime takes place and the establishment of a temporary tribunal gives the defendants time to destroy evidence, while a permanent court can act more quickly.Õ

In this regard, the ICC was established in 2002 when 60 nations ratified the Rome Statute, the treaty that forms the legal basis for the court. Its mission is to try the most serious international crimes, particularly genocide, crimes against humanity, and war crimes. With its seat in The Hague, it is independent of the UN, and is funded by its 108 member states with a 2009 budget of about $127 million.

The court is meant to work alongside, not replace, domestic prosecution, and to handle crimes nations cannot or will not prosecute on their own.

ÒSo only the most serious cases, only the crimes of international concern that are of sufficient gravity, are the ones intended to be handled. Everything else is supposed to be handled by domestic courts.Ó

The court has jurisdiction over cases in which the accused is a national of a member state, the crime took place on the territory of a member state, or the UN Security Council refers a situation to the court. It can only prosecute crimes committed after its inception.

The court has opened cases in Uganda, the Democratic Republic of Congo, Sudan, and the Central African Republic. Critics have called it Òwhite manÕs justiceÓ since all 12 ICC cases so far have been against African suspects.

That in itself has stoked the arsenal of conspiracy theorists who see the ICC as a neo-colonial tool/body mandated to keep Africa subjugated.

The argument is compelling and it would be hard to find any one African, Arab or Asian leader supporting the indictment against President Bashir. The last time I checked almost every country has an ongoing armed internal conflict, perhaps not at the scale and intensity of Darfur, but serious nonetheless. Such conflicts are no doubt encouraging the collective amnesia that has engulfed most of these leaders.

An intense diplomatic push has seen KhartoumÕs envoys visit each and every regional bloc and nation that would have a say against the arrest warrant and so far the effort is paying dividends.

Logistical woes

I say this because the ICCÕs biggest problem is a logistical one: Without a police force or standing army, how does it deliver its suspects to court?

The French Ambassador in Khartoum was to get a taste [of this when he was summoned last week to clarify statements by a French Foreign ministry spokesman that friendly nations should hijack BashirÕs aeroplane when he flies to Qatar to attend an Arab summit at the end of this month, and hand him over to the ICC.

Another is one of jurisdiction since it cannot exercise its prosecutorial powers over citizens of a non-member country (one that is not a signatory of the Rome Statute like the US, India, Israel, China and Sudan).

The other compelling argument from Khartoum is that a sitting African leader is being targeted but the same has not been tried over the daily killings reported in Iraq, Afghanistan, Mexico, Philippines Palestine and the thousands killed pin the Hiroshima/Nagasaki atom bombings, the Korean War, Vietnam and in the various liberation movements across the world over the last 50 years.

Last week the Sudan-ICC standoff reached the White House when UN Secretary-General Ban Ki-Moon visited President Barack Obama.

The Obama administration seems intent on getting its hands soiled in the Darfur issue and President Obama appointed retired Air Force Gen J Scott Gration, a close friend with experience on African issues, to be special envoy to Sudan.

And two days ago US Secretary of State Hillary Clinton warned that President Bashir would be held responsible for Ôevery single deathÕ resulting from his expulsion of 13 aid groups from Darfur.

Underneath all these is the perception that the ICC is a tool crafted in Europe (Rome), owned by western interests. There is even suspicion that US involvement is because its firms prospected for oil but the extraction contracts were handed over to China.

Dissenting voices

Bashir defiantly told a cheering rally near the southern Darfur town of Nyala that no war crimes court or the UN Security Council can touch even Ôan eyelashÕ on him.

He accused the West of attempting to Ôcreate chaos in SudanÕ and trying to split Darfur from the rest of the country.

ÒThe president of Sudan is not elected by Britain or America. Sudan is an independent country,Ó Bashir charged.

This was al-BashirÕs second visit to Darfur since the ICC issued the warrant on March 4.

His remarks reflected confidence amid support from the Arab League, whose chief Amr Moussa said this week the 22-nation group will not act on the ICCÕs warrant when al-Bashir flies to an Arab summit in Qatar at the end of this month.

As I indicated earlier, there have been many dissenting voices to the arrest warrant.

Apart from the Arab League, the AU has also expressed support for Bashir, although both have criticised his decision to expel foreign aid workers. The AU in January announced that its own high-level panel would investigate Darfur atrocities.

That panel launched in Addis Ababa, led by former South African president Thabo Mbeki, however, does not have any judicial powers and its mandate remains unclear.

Ahead of the warrant being issued, a leading Sudan expert called on the UN Security Council to suspend the arrest. ÒSudan is in a state of high tension at the moment, and we face a dangerous month aheadÉ The immediate cause of the tension is the expected arrest warrant to be issued by the ICC,Ó Alex de Waal of the New York-based Social Science Research Council wrote in his blog.

De Waal said the ruling National Congress Party Òsees the ICC as the gravest threat to its survival it has ever faced and a matter of life and deathÓ.

There were fears of unspecified retaliatory measures if the ICC judges endorse the charges against Bashir. Indeed the first casualties were international relief agencies in Darfur.

Bashir scoffed at the mere $100 million relief aid as affordable and ordered the immediate ÔSudanisationÕ of the relief effort in Darfur within one year.

De Waal has been one of the main critics of the ICC move saying it jeopardises the North-South peace agreement signed in 2005 and may escalate the five years Darfur conflict.

Peace process

Russia also renewed its keenness to surpass the allegations by ICC when the Chairman of the Foreign Affairs Committee of the Federation Council of Russia and special Envoy of the Russian President to Sudan, Mikhail Margelov visited.

China on its part has promised to respond ÔappropriatelyÕ to ICC decision on the warrant.

The Chinese ambassador said ÔChina is in contact with all parties particularly since the UN Security Council has a responsibility to preserve peace and political solution in Darfur.Ó

Last month, the Chinese special envoy to Sudan Liu Guijin told reporters that an arrest warrant would have dire consequences on peace process.

The indictment came at a time of great political instability in Sudan.

Darfur rebels are expanding their operations into neighbouring states as the country prepares for crucial national elections this year. And relations between the Arab-dominated government in Khartoum and the semi-autonomous South Sudan are coming under increasing strain.

Vice-President Salva Kiir, who shares power with Bashir in a coalition government, was more conciliatory.

He said the collapse of peace in Sudan shall not only hurt Sudan itself, but shall also have serious repercussions in the region. Sudan is surrounded by nine countries: Kenya, Uganda, DR Congo, Chad, Egypt, Ethiopia, Eritrea, Libya, Central African Republic and the Red Sea.

Bashir ended a decades-long North-South civil war, which claimed millions of lives, in 2003 by signing a comprehensive peace accord and agreeing to share power in a coalition government with the southern rebel movement, the SPLM.

Despite KiirÕs reassurance, some analysts worry that the peace deal could be dealt a fatal blow, as could similar peace talks with Darfuri rebels, if SPLM leaders deem BashirÕs government to be shaken. But in my opinion, that seems unlikely.