The decision by the prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, to charge the Sudanese president Omar al-Bashir with genocide and war crimes continues to stir controversy with critics saying that the requested indictment sets a dangerous precedent. It is the first time that the Hague-based court issues charges against a sitting head of state.
Moreno-Ocampo charged on July 14 that President al-Bashir waged a campaign of extermination against three Darfur tribes, the Fur, Masalit, and Zaghawa that has allegedly claimed up to 300,000 lives and displaced more than 2.2 million people since the conflict erupted in February 2003. Sudan claims that 10,000 have been killed. Moreno-Ocampo filed 10 charges against al-Bashir for masterminding a campaign of extermination and rape specifically targeting three Darfuri tribes. The charges include three counts of genocide, five of crimes against humanity and two of war crimes.
On 31 March 2005, the UN Security Council, acting under Chapter VII of the UN Charter, adopted Resolution 1593, referring "the situation in Darfur since 1 July 2002" to the prosecutor of the ICC. In May 2007, the ICC issued arrest warrants for two Sudanese suspects, Ahmed Harun, the current Minister of Humanitarian Affairs, and Ali Kushayb, a militia leader. The arrest warrants refer to crimes allegedly committed between August 2003 and March 2004 in the Darfur region. The ICC urged the Sudanese government to arrest them both and to hand them over to the Court. The government of Sudan, however, announced the suspension of all its cooperation with the ICC in March 2007, refusing to surrender the men. Sudan, which is not a party to the ICC, argues that the court has no jurisdiction over the case and that the matter relates to the Sudanese judicial system.
Although Sudan is not a signatory to the ICC, UN Security Council Resolution 1593 obligates Sudan to fully cooperate with the Court and to provide any necessary assistance to it and its prosecutors. The reaction to the ICC's requested indictment of President al-Bashir was mixed. Sudan's ambassador to the UN, Abdal Mahmood Abdal Haleem Mohamed, told Press TV on July 9th that the ICC is perpetuating 'insurgency' in Sudan as the Darfur rebels would not enter into talks with a government branded 'criminal'.
US President George W. Bush, whose country is not a member of the ICC, offered only an ambivalent reaction. He said he wanted to see how an international prosecutor's arrest warrant for al-Bashir "plays out." Bush also warned that Khartoum could face more sanctions. Observers say the US administration is reluctant to take steps that lend legitimacy to a court whose jurisdiction it has questioned and whose treaty it refuses to sign.
"The requested indictment marks a major step forward in international justice," said Jean-Marie Fardeau, head of the NGO Human Rights Watch France. Fardeau believes the indictment against a serving president indicates the end of impunity for world leaders. Ayman El-Amir, a former correspondent for the Al-Ahram in Washington says the ICC decision may be a blessing in disguise for the multi-ethnic population who have endured untold suffering.
Many critics have said that the decision by the ICC prosecutor was influenced by political intents. At a July 17 UN press conference, part of a series of events held at the UN to commemorate the 10th anniversary of the Rome Statute establishing the court in 1998, Moreno-Ocampo rejected charges that it was a politically motivated decision to ask the court for an arrest warrant for al-Bashir just in time for the 10th anniversary celebration of the court. The decision stirred negative reactions specifically in the Arab and African countries not only because it could derail the already fragile peace talks in the troubled region of Darfur but also for its repercussions for Sudan's sovereignty and the dangerous precedent it sets. The African Union (AU) expressed "concern" over the consequences for the shaky peace process in Sudan.
In an emergency meeting on July 19th, the Arab League foreign ministers criticized the ICC move as unbalanced, saying it would undermine the country's sovereignty. In a strongly-worded statement, the Arab League voiced solidarity with Sudan "in confronting schemes that undermine its sovereignty, unity and stability and their non-acceptance of the unbalanced, not objective position of the prosecutor general of the Internal Criminal Court". Djibouti Foreign Minister Mahmoud Ali Youssef, who chaired the meeting, criticized the decision by the ICC prosecutor as "double standards" adopted by the international community. He said "the world watches Palestinian suffering without moving" to end it. The Organization of Islamic Conference (OIC) also warned that the indictment of al-Bashir could further complicate the already tense situation in Darfur. Former Algerian President Ahmed Ben Bella has said that the charges could be "an unconstitutional way of pushing aside a head of state."
China expressed "grave concern and misgivings about the ICC prosecutor's indictment of the Sudanese leader." Expressing concerns over the internal ramifications of the move for Sudan, Chinese Foreign Ministry spokesman Liu Jianchao said, "The ICC's actions must be beneficial to the stability of the Darfur region and appropriate settlement of the issue, not contrary." Others, including the spokesman for the Uganda Muslim Supreme Council, Nsereko Mutumba believe the ICC move "is another US-driven and economically-motivated move to steal Sudan's oil resources."
Algerian daily Algerie-News wrote, "The International Criminal Court is charging the Sudanese president... But what is it doing about the other crimes committed in the world and those carried out by the American administration in Iraq." The ICC's proposed indictment of al-Bashir also gives ammunition to critics of the wars in Iraq and Afghanistan who say war crimes and massive human rights violations have been committed in these two countries as a result of the US invasion. They rightly argue that the casualty and refugee figures dwarf those of Darfur. They also argue that the ICC decision is a reflection of double standards and a Western-model of universal justice. Roland Marchal, an expert on Sub-Saharan Africa at the French-based CNRS research center says "The developing world sees the ICC and Western law as unrelentingly hounding the (African) continent." L. Ali Khan, Professor of Law at the Washburn University School of Law says the ICC ignores "the crimes" of Western leaders and generals. "The ICC has so far shown no interest in prosecuting President Bush, Vice President Cheney, Defense Secretary Rumsfeld, and State Secretary Colin Powell for the crimes they planned, organized, incited, and committed with the help of lethal weapons in Afghanistan and Iraq," Ali Khan says.
A majority (over 62%) of 2382 respondents surveyed in an online poll said the ICC should first hear the case of President Bush's war crimes in Afghanistan and Iraq. Paul Craig Roberts, who was a US Assistant Secretary of the Treasury in the Reagan administration, says he wonders why Pres. al-Bashir is picked by the ICC from the assortment of war criminals. He asks, "Is it because Sudan is a powerless state, and the International Criminal Court hasn't the courage to name George W. Bush and Tony Blair as war criminals."
Moreno-Ocampo's office reported in February 2006, that it had received 240 communications in connection with the invasion of Iraq in March 2003 which alleged that various war crimes had been committed. In response to the communications, Moreno-Ocampo explained that the legality of the invasion was not within his competence because crimes against peace have not yet been incorporated into the Rome Statute; and that in the other cases none of them were of 'sufficient gravity' to warrant forwarding to the ICC. He, however, did not explain what level of gravity the cases should have to allow them to be brought up at the ICC.
Michael Kelly of Creighton University School of Law asks, "Now that Sudanese President Omar Hassan al-Bashir has been indicted for war crimes, could George W. Bush be next?" Kelly says the American exceptionalism is more the rule than the exception in modern international law.
