Home The Washington Diplomat April 2009

Sudan ICC Case to Test WhetherGlobal Justice Can Be Served

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The International Criminal Court’s indictment of Sudanese President Omar al-Bashir for war crimes and crimes against humanity means many different things to many different people in many different parts of the world.

Some proclaim it a victory for the victims in Darfur, the beginning of the end for Bashir and a historic moment for the court. Some think it jeopardizes peacekeeping efforts and the very lives the court is supposed to protect. Others disparage it as “white man’s justice,” a classic case of Western intervention, and ask why the United States is not prosecuted for the invasion of Iraq.

Still others, including the U.S. government, are stuck in the middle. They want to celebrate the decision as a human rights victory, but they don’t want to highlight the fact that they historically have not supported the court.

Tied up in all these reactions is a serious question: Given all the logistical and political hurdles, does the International Criminal Court (ICC) provide a reliable venue for ruling on international crime?

Michael A. Newton, a law professor at Vanderbilt University Law School, serves on a panel assembled by the American Society of International Law that is investigating the U.S. relationship with the ICC. He described the case as a “a big test.”

“It requires a careful delineation of the line between law and politics,” Newton told The Washington Diplomat. “That’s why it is a big test. The ICC postulates itself as a neutral, independent legal process. But the act of indicting a sitting head of state inherently has political dimensions to it,” he said. “The way they handle that, it is a big test and has big implications.”

Birth of the ICC Seated in The Hague, Netherlands, and formed in 2002, the ICC is an independent body charged with prosecuting individuals responsible for the most heinous international crimes, namely genocide, crimes against humanity and war crimes. It is different from the International Court of Justice (ICJ), which only has jurisdiction over conflicts between states. The ICC also only handles cases that occurred after 2002.

It is often referred to as “a court of last resort.” In an ideal world, the ICC complements national courts and serves as a permanent venue for cases previously tried in temporary tribunals, such as those that emerged for the former Yugoslavia, Rwanda and Sierra Leone.

Cases come to the ICC through one of three channels: its 108-member states, the court prosecutor or the U.N. Security Council — the latter of which gives the ICC an avenue for prosecuting criminals in non-member states.

Since its inception, the court has opened investigations in three cases referred by African states — the Democratic Republic of the Congo, Uganda and Central African Republic — and one referred by the Security Council in 2005 — Sudan.

The Sudan case picked up speed last summer after ICC Prosecutor Luis Moreno-Ocampo presented evidence to the court charging Bashir with 10 counts of genocide, crimes against humanity and war crimes dating back to 2003.

Last month, the ICC responded with the warrant for Bashir, charging him with seven counts of war crimes and crimes against humanity for directing the mass murder of tens of thousands of Sudanese civilians. But the court ruled prosecutors didn’t have enough evidence to prove that Bashir orchestrated genocide, though it said Ocampo could pursue the charge later if he found additional evidence.

Still, the warrant was historic — the first indictment against a sitting head of state, by a court that had previously been criticized for concentrating too much on mid-level operatives from rebel groups and not going after high-ranking government officials.

“As soon as Bashir travels through international airspace he can be arrested,” Ocampo vowed after the indictment was announced. “Like Slobodan Milosevic or Charles Taylor — Omar al-Bashir’s destiny is to face justice. It will be in two months or in two years, but he will face justice.”

Not everyone is convinced that fate necessarily awaits Bashir. Phil Clark, a researcher at Oxford, told The Diplomat that the indictment against Bashir represents a “big gamble” given the uncertainty of what will happen next. It’s likely Ocampo hopes the decision will help the court regain some of the international credibility it lost in the cases involving Uganda and the Congo, Clark noted.

“I don’t think the prosecutor will seriously think he will see Bashir arrested and transferred to The Hague,” he said. “The prosecutor is desperately seeking some international legitimacy. He is trying to go after the most high-ranking official and charge him with the most serious crimes.”

But with no ICC police force to carry out the warrant, the gamble could backfire should Bashir continue to roam free. He’s already traveled to Eritrea in defiance of the warrant for his first trip abroad. And with various Arab and African countries opposed to the warrant — and pushing to have it deferred — they would hardly turn Bashir in if he traveled around their region. “That would make the indictment appear empty and send a message to potential perpetrators around the world that that they can do whatever they want,” Clark said.

No Respect Following the indictment, Abdalmahmood Abdalhaleem Mohamad, the Sudanese ambassador to the United Nations, hit the airwaves in defense of his president, at one point invoking Shakespeare’s Lady Macbeth. “All perfumes of Arabia will not clean this dirt,” he said. “For us the ICC doesn’t exist … and we are in no way going to cooperate with it.”

At home, Bashir bashed Western intervention at massive rallies and went on to expel 13 international aid organizations responsible for feeding and caring for 4.7 million people — including roughly 2.7 million internally displaced by the conflict between Arab militias supported by the Sudanese government and the largely black rebel forces.

Bashir’s canny public relations strategy became clear: Play the sovereignty card. “It’s not the U.S. or Britain who chooses the president of Sudan but the Sudanese people,” said Bashir, thumbing his nose at the warrant.

The president’s brazen response highlights the court’s struggle to shed the Rodney Dangerfield-like reputation it has developed over the years. For starters, major global players — including the United States, China and Russia — have never signed onto the court or recognized its jurisdiction.

Another problem, Newton of Vanderbilt University said, is that the ICC has done a poor job reaching out to the very communities it is supposed to help. “For the ICC to sit on an island in The Hague and pretend like it has a hand in the region is unrealistic,” he said.

In a 2008 report, Human Rights Watch agreed, saying that more robust outreach efforts would help dispel some of the twisted logic used against the court — including the notion that because all 12 cases so far have been against African suspects, the court pushes “white man’s justice.”

ICC officials have also shot themselves in the foot. Their mistakes bogged down the six-year-old case against Thomas Lubanga, the former Congolese warlord accused of conscripting children under the age of 15 into his rebel militia. His case was derailed last summer after judges said Lubanga should be set free thanks to legal and strategic errors by the prosecution. The judges later changed their minds and the court finally began trying the case — its first trial — in January. But the damage to the court’s reputation was done.

Restraints on the Ground Perhaps the court’s biggest flaw is its inability to enforce or execute its rulings. Even if Bashir travels to a country that recognizes the ICC, there is no guarantee he will be arrested. In this respect, the court is completely dependent on the international community.

“While the vision of the court and the hopes of the court might be quite huge, the practicalities of the court is severely limited and it does rely on cooperation on the ground,” Clark said.

The point has been driven home at daily news briefings at the U.S. State Department, where deputy spokesman Gordon Duguid has ducked questions about whether the U.S. government would arrest Bashir on American soil. He’s also been forced to backtrack from statements that seemed to indicate the United States recognized Bashir “as a fugitive from justice,” instead saying: “He’s a fugitive from justice in the eyes of the ICC.”

Experts say it’s doubtful that the United States, still mired in two wars, will try to topple another Arab-led government. Other countries are also wary of stepping in and further destabilizing a nation already on the brink. Sporadic violence against U.N. peacekeepers and remaining humanitarian workers continues, and many are worried that the warrant could derail further peace talks with the government — including a separate peace agreement that ended an even bloodier 20-year civil war in the country’s south.

It’s clear the fallout from this case will test the ICC’s viability. It’s also clear that it will test whether international law can ever live up to the principle that has guided international courts since it was first articulated at the Nuremberg Trials against Nazis after World War II: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

About the Author

Seth McLaughlin is a contributing writer for The Washington Diplomat.

Last Edited on July 8, 2014