Home | Comment & Analysis    Tuesday 27 February 2007

The threat of the ICC to the Sudanese regime


This paper was initially published on 15 January 2007.

By Wasil Ali

Jan 14, 2007 — The role of the ICC in the Darfur crisis have been understated by many observers and even world diplomats. When the UN security council adopted resolution 1593 in March 2005 referring the situation in Darfur to the International Criminal Court (ICC), most people were hoping for swift justice. These hopes quickly faded by the lack of information coming out of the Office of the Argentinean-born ICC Chief prosecutor Luis Moreno-Ocampo on the progress of the investigation. Even the periodic briefings by Mr. Ocampo to the UN Security Council brought about further questions of why the prosecutor is taking his time in issuing arrest warrants against the masterminds of war crimes in Darfur. Some observers even gave up on the ICC as a venue of achieving justice in Darfur and ending the culture of impunity that prevails in that troubled region. Furthermore, some circles in government of Sudan began to feel comfort in thinking that they may never be prosecuted before the ICC. A frustrated Louise Arbour, the United Nations High Commissioner for Human Rights, expressed rare criticism of the ICC in a press conference on May 11 2006 saying that "Progress is invisible. I believe we must call on the ICC to act more robustly, and visibly discharge the mandate ... that the (U.N.) Security Council has conferred on it”. Jan Pronk , the former UN Secretary General representative to Sudan, echoed the frustration with the slow pace in a closed session of the UN security council saying that “the ICC have to work quicker….I understand that they have to be very thorough in order not to make mistakes but its also important to set some examples…and this [slow pace of ICC investigations] has political consequences because people think they can get away with everything”.

Mr. Ocampo evidently began to feel the pressure and the burden placed upon him by this very high profile case. But despite all that his office has maintained a consistent policy of extreme discretion & refraining from addressing to the media & disclosing very little information. In an interview with BBC Arabic on December 13 2005 Mr. Ocampo said that he hoped to achieve some results within the next six months. However in his report to the UN Security Council in June 2006 his tone was less optimistic as he spoke about the challenges his office is facing in trying to determine the individuals who are most responsible for the atrocities in Darfur citing the complex nature of the conflict.

The ICC’s work in the Darfur case came back to the spotlight when the chief prosecutor made a surprise announcement on November 23, 2006 before the Assembly of State parties that his office has completed the investigation into the individuals he considers most responsible for the crimes. For some observers it seemed as if Mr. Ocampo could not wait to disclose this information in his fourth report to the UN Security Council which was due weeks later. It was a rude awakening to the government of Sudan, reminding them that indictments will be handed down and that they will soon be coming to crossroads with the international community. This only added to the intense pressure they were under to allow UN peacekeepers into Darfur. It came as no surprise that they feared that those peacekeepers will be the ones to execute the possible arrest warrants in a Yugoslavia style. The U.S. state department spokesman Sean McCormack disclosed that the Sudanese President Omar al Bashir explicitly requested a clarification if the mandate of the UN peacekeepers was to apprehend those indicted by the ICC. The Sudanese First Vice President Silva Kiir said that he explained to the British Prime Minister Tony Blair that if Bashir received assurances that this will not be the mandate of the UN peacekeepers, he will let them into Darfur.

The ICC chief prosecutor confirmed in his last report to the UN Security Council that he will present his case to the ICC judges no later than February 2007. Perhaps the most significant part of his report that went largely unnoticed was that Ocampo stated that his investigation will reveal “the underlying operational system that enabled the commission of these massive crimes”. In an interview with Jerry Fowler from Voices on Genocide Prevention, the chief prosecutor emphasized that the issue of the chain of command in was an important aspect of the Darfur case. In other words he is hinting that senior Sudanese officials will stand trial for their role in the Darfur war crimes. Ocampo also mentioned that, unlike the cases of Uganda and DRC, the arrest warrants will immediately be made public once the ICC judges approve them. Secret arrest warrants served the purpose of enabling the governments of discreetly executing them without making the suspects aware until they are caught. A simple explanation of why this would not be helpful in the Darfur case is that the suspects Ocampo is seeking to indict are senior government officials that Khartoum will definitely not want to have extradited to the Hague.

This is President Bashir’s worst nightmare, for even a single arrest warrant against a senior official will strip his regime from its legitimacy and may possibly create a new confrontation with the international community should he refuse to hand suspects to the ICC. The government of Sudan knows one thing; no official in any capacity was able to survive an international arrest warrant since the Nuremberg trials of 1945. Charles Taylor, Slobodan Milosevic, Radovan Karadzic are evident in their memories.

This leads us to the next question. What will the government of Sudan do when faced with a request to hand over suspects to the ICC? Following the referral to the ICC the Sudanese president has swore thrice that he will not hand over any Sudanese citizen indicted to the Hague. This confrontational attitude does not seem too realistic given the facts surrounding this case. The resolution was adopted under Chapter VII of the UN charter authorizing the coercive measures for non-compliance. China, a key ally to Sudan, does not seem prepared to protect Sudanese figures from prosecution. In explaining its abstention from voting on resolution 1593 the Chinese ambassador to the UN noted that they “believed that the perpetrators must be brought to justice”. China’s stance with regard to the ICC referral have deeply disappointed and even angered the Sudanese government. The Sudanese second Vice President Ali Osman Mohamed Taha told Sudan’s cabinet he had Chinese assurances the resolution would not be passed, a source close to the presidency told Reuters on December 17 2005. "He was confident it would not get through and told them not to worry," he said. Their abstention rather than a veto embarrassed Taha within the government, the presidency source said. Interestingly enough the Sudanese presidential adviser Nafie Ali Nafie, addressed a crowd following the ICC referral criticizing China for not blocking the resolution. Russia which has military links with Sudan, has voted in favor of resolution 1593 which means that Sudan could not rely on them either for support in a possible standoff over the issue of handing over the suspects.

It is important to note that there are over 100 countries that are signatories to the Rome Statue that forms the basis of the ICC. Out of those 100 countries there are some who are very staunch in their support to the mission of the ICC such as the United Kingdom & France who are veto-holding nations in the UN Security Council. This is evident in UK’s UN Ambassador Emyr Jones Parry statement to reporters saying that he “was absolutely categorical about the expectations of the cooperation of the government of Sudan [with the ICC]” and that “if it becomes apparent that the prosecutor is not receiving the cooperation we would expect from the government then the council will have such a report from the prosecutor and we will need to respond to that and we will respond to that”. Moreover the International Criminal Police Organization (Interpol) has an agreement with the ICC by which it will assist in arresting fugitives and suspects. The agreement further gives the ICC OTP access to the Interpol telecommunications network and databases

The government of Sudan which is well known for its political maneuvers when faced with intense pressure may find it difficult to pursue such a strategy with regards to the ICC. Khartoum’s current position on deploying UN peacekeepers to Darfur will make it even harder to find sympathetic partners in any possible standoff with the ICC. To make it even more complex for Bashir is that not even his partners in the government the SPLM will want to take his side in opposing international trials for Darfur war crimes suspects.

It follows that Sudan is left with no options but to hand over the suspects to the ICC or to prosecute those indicted individuals in its own local courts which would be a very costly process from a political perspective to the Sudanese regime and hard to sell to the international community.

* The author conducted an interview last month with the ICC chief prosecutor about Darfur case. He can be reached at wasiltaha@hotmail.com

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