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Darfur and the Sudanese President: Options in International Law
by Ramya Nagesh
We at The Law Journal UK welcome Ramya Nagesh. Ms. Nagesh gained her LLB from London School of Economics and BVC from College of Law, London. Her special interest is in Asylum, Human Rights and Immigration. During her working life she has been involved with representing immigrants from Darfur, Sudan seeking asylum in Britain. She will be in India over the next few months working with Human Rights organisations there.
Your comments are welcome on this and any of our articles -- contact Brian Risman, Publisher, The Law Journal UK regarding your thoughts.
Background
From the beginning, Omar Al-Bashir’s role as President of Sudan was characterised by force. In 1989, the then colonel led a group of army officers in ousting the democratically elected but unstable coalition government. Subsequently, he ordered the suspension of political parties and the introduction of a national Islamic legal code. He then assumed the posts of chief of state, prime minister, chief of the armed forces and minister of defence under the blanket title ‘Chairman of the Revolutionary Command Council for National Salvation’ (a newly established body with legislative and executive powers), promising that this would be for a transitional period.
When he came to power the ongoing ‘Second Sudanese Civil War’ was underway, one of the longest running and deadliest civil wars of the 20th Century, which Bashir’s government finally brought to an end through negotiations in October 2004. However, from 2003 a fresh conflict began in the Western province of Darfur. This has comprised of brutal mass attacks by the government-backed Janjaweed militia (literally translated as: ‘devil on horseback’) which has seen the death toll rise into hundreds of thousands, and millions of displaced people, according to international organisations. The Sudanese government continue to deny these figures, claiming that the real number is far less.
The International Criminal Court was established in 2002 with a view to creating a permanent tribunal to specifically prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression. In May 2007, it issued arrest warrants for Sudanese humanitarian affairs minister Ahmad Muhammad Harun and Janjaweed militia leader Ali Kushayb, accusing them of war crimes and crimes against humanity. However, in what was seen as blatant defiance of the Court, the Sudanese government refused to hand the two men over, claiming that the Court had no jurisdiction in the matter. On 14 July 2008, the Prosecutor, Luis Moreno-Ocampo, accused Al-Bashir personally of genocide, crimes against humanity and war crimes, and requested that the Court issue an arrest warrant for him.
Should the warrant be issued, this will be the first time that a sitting head of state will be indicted. Thus, the debate around whether or not it should be done is lively. The Court can now choose between what appear to be the three most convincing options: 1) issuing the arrest warrant 2) setting up a ‘hybrid’ court similar to the International Criminal Tribunal for the Former Yugoslavia, established to prosecute crimes committed during the wars in the former Yugoslavia, or 3) deferring the arrest of Al-Bashir for 12 months, which can be done under Article 16 of the Rome Statute of the International Criminal Court. This article will now discuss the arguments around these possibilities in greater detail, and conclude with the author’s recommendation based on the discussion.
Discussion: What to do with Al-Bashir: Prosecution, deferral or a hybrid court?
The creation of the ICC threw into light the increasing role in international criminal law of politics when administering justice. Crimes involving a state must engage the delicate web of relationships existing between states. International law relies on this web – sanctions are often in the form of disapproval, perhaps (at the extreme) in the form of trade withdrawal. Thus in the proposed indictment of Al-Bashir lies a complexity of questions regarding the relationship between justice and politics. With over 500 000 people killed in Darfur in the past five years[1], all agree something must be done. Yet the bickering is over what. It appears that the crucial choice lies between arrest by the ICC, deferral under Article 16 or a special ‘hybrid’ court in Sudan, similar to the International Criminal Tribunal for the former Yugoslavia or that in Sierra Leone.
It appears that the core concern is, at heart, a simple one: how best to save as many lives as possible from trauma or destruction. The landmine that is Sudan is a tricky one to negotiate. Time is evidently a factor. In its 2005 letter to then-US Secretary of State Condoleeza Rice, Human Rights Watch (HRW) argued that ‘a new ad hoc international or national-international tribunal would take too long to establish.’[2] In the case of Sierra Leone’s Special Court, almost two years passed before the creation of the tribunal. Indeed, strong criticisms of existing ad-hoc tribunals are both their expense and delay, and the Council has been looking to wind them down, not to extend them. In Sudan, where there exists an ongoing ‘genocide by attrition’[3], such a delay could be catastrophic. Thus, this argument should not be taken lightly. Couple with this the fact that support for an ad-hoc is far less clear than that of an ICC referral[4], and the length of time it would take to approve and set up such a tribunal could increase significantly.
The HRW letter continues to declare that the ICC was created exactly for this sort of purpose and so would be well equipped to handle it. It is true that the crimes for which Al-Bashir will be tried are precisely those that were envisaged when the ICC was set up ten years ago. Yet the suitable marriage of the ICC’s competencies with Al-Bashir’s crimes cannot be the sole reason for discarding the creation of a hybrid court. After all, a hybrid court would dispense justice close to the scene of the crime, another ambition of the ICC.[5] Furthermore, the Sierra Leone court, although criticised for expense and delay, has proved extremely successful.
Proponents of the hybrid court raise the point that the reaction of Mr Bashir to an indictment by the ICC cannot be ignored. As the first serving head of state to be hauled before the ICC, he has the unique position of remaining in a powerful role while his demise is being constructed before his very eyes. He will no longer have the incentive to maintain international relations by attempting to promote peace within his country.
As The Economist notes in its recent article A Middle Way for Justice in Sudan:
A vindictive Mr Bashir could stymie the national elections planned for next year, end a very fragile peace process in Darfur, expel UN troops from the region or retard the already slow implementation of a peace agreement between his government and the former rebels in south Sudan. He could do one of these things or all of them together.[6]
At the moment, the fate of Sudan hangs in a delicate balance. While the ICC is fighting to bring him to prosecutorial justice, the United Nations are attempting to end the conflict through negotiations.
As Africa News states:
The charges against the Sudanese president had provoked strong and adverse reactions from Khartoum, and concerns from UN Secretary General Ban Ki-Moon, that they might interfere with UN efforts to end the conflict through negotiations involving Al-Bashir.
These fears do not appear unfounded. Faced with the real prospect of conviction, Al-Bashir’s incentive to engage in peaceful negotiations could be stunted. He currently plays a crucial role in determining the success of the Comprehensive Peace Agreement, which ended the north-south civil war, and his support would be vital to ensure that any peace agreement in Darfur could have any chance of success. Thus, a prosecution could lead to cessation of cooperation with UN presence and humanitarian relief operations in Sudan that ensure the lives of millions.
There is a third solution: an Article 16 deferral which would enable the threat of prosecution to be used as leverage against Al-Bashir, persuading him to make peace in Darfur by taking specific, constructive steps without delay.[7] However, there is the possibility that a deferral would indicate nervousness on the part of the international community to take action.
As Foreign Policy Digest states:
They [Some Security Council members and human rights organisations] argue that deferring the case would damage the credibility of the ICC, that a political body like the UN should not interfere with an independent judicial process, and that trying to bring to justice those most responsible actually helps promote peace, citing the prosecutions of Charles Taylor in Liberia and Radovan Karadzic in Serbia.
Furthermore, ad-hoc tribunals are notably poorly placed to withstand such non co-operation. Even should this not be the case, could the ICC truly be satisfied that they would be as strict and as fair in its application of sanctions as the ICC itself? This would be a high hurdle for Sudan, given its history of non co-operation and internal conflicts.
The softening of international barriers creates a world stage upon which all actors must move in sync with each other. Yet this should not be had at the expense of justice. It seems dangerously probable that a deferral of arrest warrant could promote the image of a weak ICC, and international bodies tangled in politics. Mr Bashir has so far not heeded Prosecutor Moreno-Ocampo’s quietly dangerous threats of action: far from it, in 2007 he actually promoted Mr Harun and freed Mr Kushayb[8] from prison in open mockery of the standing of the ICC[9]. The next step must be arrest, for it seems increasingly likely that any hope Mr Bashir will ‘mend his ways’ in the coming year will prove to be tragically misguided.
Ramya Nagesh
[1] Wikipedia Article, found at http://en.wikipedia.org/wiki/Omar_al-Bashir, last accessed 26 December 2008
[2] HRW letter to Condoleeza Rice, found at http://www.hrw.org/en/news/2005/01/20/us-icc-best-chance-justice-darfur, last accessed 26 December 2008
[3] Prosecutor’s Statement on the Prosecutor’s Application for a warrant of Arrest under Article 58 Against Omar Hassan Ahmad AL BASHIR – The Hague, 14 July 2008. ICC publication
[4] HRW letter to Condoleeza Rice, found at http://www.hrw.org/en/news/2005/01/20/us-icc-best-chance-justice-darfur, last accessed 26 December 2008
[5] The Economist, A Middle Way for Justice in Sudan, 11 December 2008, found at http://www.economist.com/world/international/displaystory.cfm?story_id=12777952 last accessed 26 December 2008
[6] The Economist, A Middle Way for Justice in Sudan, 11 December 2008, found at http://www.economist.com/world/international/displaystory.cfm?story_id=12777952 last accessed 26 December 2008
[7] See for example, Foreign Policy Digest, Al-Bashir indicted: Justice v Peace? August 2008, found at http://www.foreignpolicydigest.org/August-2008/Archive/al-bashir-indicted-justice-versus-peace.html last accessed 26 December 2008
[8] Harun: between 2003 and 2005 was Minister of State for Humanitarian Affairs in Sudan. Arrest warrant of ICC lists 42 counts of crimes against humanity and war crimes. Kushayb: one of the most senior leaders of the Janjaweed militia. Arrest warrant of ICC lists 50 counts of crimes against humanity and war crimes. SOURCE: Amnesty International USA: Arrest Now! Found at http://www.amnestyusa.org/document.php?id=ENGAFR540272007&rss=darfur last accessed 29 December 2008
[9] Sudan Organisation Against Torture Alternative Report May 2008, p.14, found at http://www.darfurconsortium.org/member_publications/2008/May/SOAT.051908.pdf, last accessed 29 December 2008
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