At the end of an emergency meeting of the Arab foreign-ministers that took place in Cairo, Egypt, Saturday, the July 20th, the Arab League decided to support the Sudanese president in his quest to suspend the ICC’s warrant. Amr Moussa, secretary general of the Arab League, declared that he will go to Sudan and discuss a more detailed plan to counteract the ICC’s chief prosecutor’s decision to accuse al-Bashir of genocide. The meeting was held behind closed doors and no detailed plan of action was made public at the end of the day.
For the last week, journalists around the world have been asking everyone, from government officials, political analysts or even military strategists what the most important goal of the ICC should be: peace or justice. On Saturday evening, Mr. Amr Moussa clearly unveiled what the Arab League thinks is best for Sudan. He declared that all parties directly or indirectly involved in the conflict in Sudan should unite their forces to protect the fragile peace process in Sudan. That of course means not doing anything about Omar al-Bashir.
Many government officials who were present at this emergency meeting expressed their conviction that Arabs should show their solidarity with the Sudanese government and the people of Sudan. This is a rather defying statement since I’m sure the people of Darfur did not choose to be killed, persecuted, tortured or raped.
Several Arab States have asked for a Security Council resolution that would suspend the warrant for 12 months. This is possible under Article 16th of the International Criminal Court Charter which states that:
“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”
However, this would be an unprecedented decision for the Security Council and it is definitely one of the most uncomfortable situations the Council has ever had to deal with. Firstly, choosing peace over justice can have a boomerang effect if peace will not be achieved. Based on the way things have evolved in the last four years, few SC member states (if any!) even dream that peace would actually be achieved in Sudan. On the other hand, pursuing the warrant on al-Bashir could even lead to a direct conflict with the government of Sudan which has made clear its intentions not to abide to any decisions made by the ICC. However, the legitimacy of the entire United Nations could be in danger if more people will die in Darfur (I’m talking about hundreds of thousands). The image of the Security Council has also been tarnished after the controversial decision of two of the permanent members of the Security Council, Russia and China, to veto a resolution that would have imposed more restrictions on President Robert Mugabe of Zimbabwe. Mugabe ran in a one man election which was unsurprisingly won by Mugabe, after his opponent, Morgan Tsvangirai pulled out of the contest citing increased violence against his supporters.
Many analysts fear that the UN will lose political capital no matter how the Security Council decides in the case of al-Bashir.
There are two main issues the world is concerned with at this time in talking about the prosecution of the Sudanese president. Firstly, will the court choose to pursue the indictment of President al-Bashir? Secondly, will the Security Council be willing or even able to stop such an indictment?
No one really knows the answers to these questions yet some logical assumptions could be made with the assumed risk that this blogger could be wrong. Firstly, if we are to look at the previous record of the ICC’s chief prosecutor, Mr. Moreno-Ocampo, we see that none of his earlier requests for indictment have been denied by the court. Moreover, one would certainly be naïve to assume that the prosecutor is not in direct contact with most of the judges who will be ruling in the case of al-Bashir. This is not to say that the prosecutor tried to persuade the judges to give his case a favorable ruling. But it would be foolish of Moreno-Ocampo not to consult with them before pursuing the indictment in such a high profile case. My assumption is that Mr. Moreno-Ocampo, a very experienced lawyer, certainly did his best in building this case. And since this is a court that it is not under the jurisdiction of the United Nations, a court strictly interested in justice, I believe it is safe to assume that at a particular point in the next two months al-Bashir will be formally indicted by the Court. Exceptions:
a) Moreno-Ocampo decides to withdraw the complain
b) Dramatic changes occur in Sudan and things suddenly move for the better. In that case, the Court will either reject the case or unofficially ask the prosecutor to withdraw his case.
If none of these happen, and the court indicts al-Bashir, then the case with be brought to the attention of the Security Council. The Security Council, as presented above, can indefinitely postpone the indictment. In theory, shockingly enough, it should actually do that! Ironically, according to the UN charter, the main mission of the UN is to maintain international peace. Justice, unfortunately, comes as a secondary goal; peace is the number one priority. However, the UN has been caught off-policy too many times for someone to actually think the decisions of the Security Council are anything but political in nature…
And this is when things get complicated.
We can safely guess how the permanent members will vote. China, Russia will vote for the temporary nullification of the warrant while France, the UK and the United States will vote against. While none of these states have officially declared what they would do if the court indicts al-Bashir and the Security Council has to make a decision, we have some hints regarding where they stand on the issue. Representatives of both the United Kingdom and France declared that the court’s decisions should be respected. The United States is the first country to ever officially label the war in Sudan as genocide. Moreover, both the US and the UK will not forget the decision of China and Russia to veto their resolution on Zimbabwe so they will most likely pay their debts back. Moreover, the decision to vote for the postponement of the indictment will absolutely ruin the political career of the president of either the UK or the US.
Suspending the ICC’s first case against a serving head of state will certainly damage its credibility. As some of its most prominent members, both France and England will do anything to prevent that from happening. The only problem that remains on the table if things go as predicted is how the mandate will be enforced. No one can answer that question yet, and this blogger is also forced to admit his limitations and not jump to overly-optimistic conclusions.
I do however hope that this ICC 101 lesson helped.
Leave a Reply