The ICC vs. President Al-Bashir: A Necessary Precedent?

As the International Criminal Courts takes the unprecedented decision to indict Sudanese President Omar Al-Bashir, critics claim that the decision will not be as straightforward as may be thought.

Dr Knox Chitiyo
Head, Africa Programme, RUSI

The decision by the International Criminal Courts (ICC) Chief Prosecutor Luis Moreno-Ocampo to seek the arrest of President Omar Al-Bashir of Sudan on charges of genocide is historic. The ICC has issued arrest warrants for senior members of the Khartoum administration, as well as for other human rights transgressors in Africa and elsewhere, but this is the first time the ICC head has demanded the arrest of a sitting head of state. Unsurprisingly, Moreno-Ocampo’s request has proved to be highly controversial. The Sudanese government has unleashed a torrent of criticism against him in particular, and the ICC in general, and there has been a great deal of concern from various quarters that indicting President Bashir would utterly destroy the already stalled Darfur Peace Accord (DPA) process. Worse still, there is a palpable fear of retribution from Khartoum against the Darfuris, humanitarian organisations in Darfur and the UNAMID operation in Darfur. Others, however, beg to differ from this requisite pessimism, arguing that the ICC, if it is to have any credibility at all, must at least be able to express its intent without fear or favour – and indicting Al-Bashir is a clear signal of intent.

There are a number of arguments against the indictment of Al-Bashir; these arguments fall naturally into expediency, enforceability, precedent and definition. With regard to expediency, the strongest argument is that if the ICC pursues the case against Bashir, it would result in a furious Khartoum and its proxies escalating their attacks on Darfuri refugees, humanitarian aid workers, and the UN missions in Darfur and the rest of Sudan. Criminalising Al-Bashir for genocide could become a self-fulfilling prophecy; it could lead to the regime unleashing the very genocide of which it is accused. In addition, if the indictment does lead to increased violence, there is little doubt that Khartoum and the Janjaweed would not be the only guilty parties. Since the resurgence of conflict in Darfur in 2003, rebel groups have also been guilty of targeting civilians. A renewed onslaught by Khartoum would lead to an escalating spiral of violence in which unarmed civilians would be enfiladed by marauders from all sides.

Many have critiqued the enforceability of the indictment (assuming a formal warrant is indeed issued against President Al-Bashir). Although 106 countries are signatories to the ICC’s Rome Accord, many of the world’s most influential powers, including the US, Russia and China, and Sudan itself, are not signatories to the ICC Charter. Should the indictment be passed, the ICC would have no legal powers of compulsion over non-signatories to the Accord. The question of enforceability is problematic even with regard to ICC signatories. On paper, were Al-Bashir to set foot in an ICC signatory state, that state would be legally and morally obliged to arrest, or assist in the arrest, of Sudan’s head of state. Enforcing this obligation would be a different matter; the ICC lacks the mechanisms to do this.

There is also the question of failed precedent, and possible favouritism; in 2005, the ICC issued warrants of arrest for Joseph Kony, leader of the Lord’s Resistance Army (LRA) in Uganda. Largely for reasons of political expediency and the need to retain Uganda’s fragile peace process, Kony’s arrest warrant has not been implemented, and remains unenforceable for the immediate future. In 2007, the ICC issued arrest warrants for government minister Ahmed Haroun and Janjaweed leader Ali Kushayb. Secure in the knowledge that the ICC had no means of enforcement, Sudan refused to hand them over; Khartoum views Moreno-Ocampo’s request as an even greater farce and insult, and will certainly not hand over its own head of state to an organisation which Khartoum views in some respects as an anti-Muslim league. The ‘favouritism’ argument queries why the ICC apparently concentrates mainly on Africans and perpetrators in the ‘third world’ even though there have been repeated calls for Western leaders to stand trial for the ‘consequential damage’ inflicted on Iraqi and Afghan civilians by the War on Terror.

When is a genocide a genocide? Moreno-Ocampo insists that Al-Bashir is guilty of genocide, crimes against humanity and war crimes in Darfur. Khartoum has consistently argued that there has been no genocide in Darfur, at least not according to the traditional strictures of definition, which see genocide as the deliberately planned and implemented, full or partial extermination of an (ethnic) group or groups. According to Khartoum, although there have been attacks on civilians, which have resulted in huge casualties and massive displacement, this does not constitute an eliminationist policy. This debate over the semantics of genocide is not new, but it may prove central to the question of enforceability with regard to the Al-Bashir case and others. The ICC alleges that over 300,000 civilians have been killed, mainly by Khartoum's forces and there proxies, but Khartoum disputes these figures as well as its culpability. The Sudan government will also contest Moreno-Ocampo's claim that rape and forced displacement also constitutes genocide. It may prove easier for the ICC to press the war crimes and human rights abuses cases, but even here it will be incumbent on the ICC to prove intent and responsibility on the part of Al-Bashir.

Many more arguments could be made against Moreno-Ocampo’s decision, not least the complaint that the ICC favours justice at the expense of peace – but the reality is that, on purely moral grounds, he may well be setting a correct precedent. The ICC is deeply flawed in its structure and process, but it is one of the few global repositories of hope for due process for victims of human rights abuses. The African Union has had to focus its attention on conflict management and resolution in Africa; justice, restitution and reconciliation have either been handled locally, or by international bodies – or not at all. Others have argued that the ICC rides roughshod over long established, indigenous justice mechanisms, and that by seeking to impose a universalist, ‘foreign’ value system, it is actually undermining the processes of conflict management, conflict resolution and post-conflict reconciliation and restitution.

It is not easy in today’s complex, multi-value world to argue the case for a universalist value system, particularly with respect to crime and punishment: but it is essential. Indigenous, local approaches are valuable – often vital – but there is the great danger that without a universalist perspective, localism could turn out to be a relativistic rabbit warren which hides and protects perpetrators of human rights abuses. Raping, mutilating, displacing and killing unarmed civilians are atrocious acts by any measure, and cannot be condoned. Although the reality is that many of the most notorious instigators and perpetrators may never stand trial, the symbolic importance of the process of acknowledging the collective memory of the victims, and pursing justice against the perpetrators, is undeniable.  Luis Moreno-Ocampo has, throughout his career, displayed a ferocious determination to pursue the guilty. He has clearly resolved to set a precedent which does away with the current norm of 'junk justice' for human rights abusers and their victims. The Moreno-Ocampo decision is thus important in signalling a return to the most fundamental of legal values – namely, the idea that no one is above the law.

The views expressed above are the author's own, and do not necessarily reflect those of RUSI.