The request by the prosecutor of the International Criminal Court (ICC) for an arrest warrant against President Omar al-Bashir will find a significant place in history.
Advocates for human rights around the world have welcomed the move as historic and a necessary acknowledgement of the long suffering of victims in Darfur. As the prosecutor, Luis Moreno-Ocampo, said in a news conference in The Hague, this is the first time that an international court has attempted to halt an ongoing alleged genocide.
All the ICC’s efforts to secure cooperation from the Sudanese government in executing the arrest warrants issued more than a year ago for government minister Ahmed Mohammed Harun and Janjaweed leader Ali Kushayb have failed. And no end is in sight for the conflict in Darfur.
Those who have welcomed the prosecutor’s latest move have stressed that he has shown that no one is above the law and no head of state should be allowed to commit heinous crimes with impunity – just as did charges previously brought in special courts against Slobodan Milosevic of Serbia and Charles Taylor of Liberia.
The prosecutor has represented the voice of the powerless in Sudan. But in this instance the powerful have the capacity to unleash widespread death and destruction. Official spokespersons for Sudan’s government and the ruling party have adopted hard-line and even threatening positions. These include accusations that the prosecutor is politically motivated; a reaffirmation of Sudan's rejection of the ICC’s jurisdiction; and claims that the warrants pose threats to the chances of peace in Darfur, to the Comprehensive Peace Agreement between North and South Sudan, and to government development and democratization agendas.
President Bashir and other officials have reiterated their commitment to the deployment of the joint African Union-United Nations peacekeeping force, UNAMID, and to the protection of humanitarians and peacekeepers, but have hastened to add that the prosecutor's “irresponsible” action now threatens these commitments. An attack on UNAMID took place last week, killing seven soldiers and police.
The government is also working to rally organizations such as the African Union and League of Arab States against the warrant application, arguing that the ICC’s actions are a product of Western bias against Africa, or of double standards when compared to its failure to pursue crimes committed in the Middle East conflict.
The next two to three months will be a time of waiting for the prosecutor and the Sudanese government, while a panel of judges at the ICC decides whether to issue the arrest warrant.
Meanwhile, UN and international aid workers will experience considerable tension until Khartoum’s response to the prosecutor’s application becomes clear. The UN has already decided to evacuate non-essential staff. The prosecutor has stressed that these actors have played no role in his activities, but will that be enough to dissociate them from the ICC?
The prospects for those most affected by the conflict – its victims – are particularly grim. They may well ask: will this development, which cannot be undone, end or prolong the violence?
Organizations such as the International Crisis Group advocate a role for the Security Council under Article 16 of the Rome Statute, which established the ICC. This clause allows the council to pass a resolution deferring a case for 12 months, and some argue that the situation should be carefully monitored to see whether such a resolution is necessary.
But what would the impact of deferring the case be on the court? Could it insist on cooperation from countries such as Uganda and the Democratic Republic of Congo if an alleged “génocidaire” head of state was given a reprieve? If action against Bashir is suspended, why should those countries execute the court’s warrants? What would the impact be on the credibility of the court and of international justice in the long term?
The credibility of international justice should be a concern of not just the prosecutor. It is also a concern for the 106 “State Parties” to the Rome Statute, to the states which voted in favor of referring the Darfur case to the ICC in 2005, and to the 15 members of the Security Council which called on Sudan to cooperate with the court in a presidential statement issued last month. If states will not support the prosecutor in carrying out a mandate that they themselves have given him, his task becomes impossible.
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Virtually nobody can predict the outcome of events set in motion by the prosecutor’s application. But there is one notable exception: should the court grant an arrest warrant, the Sudanese government holds the key to – and must be held fully responsible for – what happens next.
For its part, the Security Council must hold to its position. At the same time, it would be wrong to say that other strategies must now all be abandoned. Victims of ongoing conflict need humanitarian assistance, protection and the benefits of a negotiated settlement. The international community should continue to pursue these goals while at the same time insisting that the perpetrators of crimes are held accountable for the suffering they have caused.
Suliman Baldo and Marieke Wierda are the respective directors of the Africa and Prosecutions programs at the International Center for Transitional Justice.
