Al-Bashir and the International Criminal Court

by Rene Wadlow, Toward Freedom

After a thorough examination of the evidence presented by the Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, a panel of three judges has issued an arrest warrant against President Omar Hassan al-Bashir of Sudan. There are seven charges against al-Bashir, including crimes against humanity, murder, extermination, forcible transfer, torture, rape, attacks against civilian population and pillaging. The ICC confirms the statements that non-governmental organizations (NGOs) have been making to UN human rights bodies since early 2004.

The evidence against al-Bashir had been collected at the request of the UN Security Council and had been added to by the High Level Mission established by the UN Human Rights Council in December 2006, chaired by Prof. Jody Williams, the 1997 Nobel Peace Laureate for her work on a ban on landmines. The High Level Mission confirmed that there is a high level of destruction, millions of people are displaced, and a large number of people have been killed. There is a refugee flow to Chad and a danger of the conflict spreading to Chad and the Central African Republic. The High Level Mission also indicated that the responses of the Sudanese government are inadequate. Their report stated that "Mechanisms of justice and accountability, where they exist, are under-resourced, politically compromised and ineffective. The region is heavily armed, further undercutting the rule of law, and meaningful disarmament and demobilization of the Janjaweed, other militias and rebel movements is yet to occur. Darfur suffers from longstanding economic marginalization and underdevelopment, and the conflict has resulted in further impoverishment."

The indication that the national court system is inadequate is crucial, as the ICC can act only when the national court system is unable or unwilling to prosecute the person in question.

This first ICC arrest warrant against a ruling head of state is an historic moment in the development of world law. There is a distinction between "international law" and "world law" that is made, at least by advocates of world citizenship and some international law professors such as the late Louis Sohn of Harvard Law School. International law is basically treaty law and deals with relations among states. World law is the law of the world community and thus deals with individuals. Most human rights standards, the ICC and the ad hoc courts dealing with former Yugoslavia, Rwanda, and Sierra Leone can be considered "world law" as they deal with individuals. The ICC deals with an individual not an entire state. However, the standards against which the individual is judged have often been set out in treaties and conventions such as the 1948 Convention on Genocide. Thus there is a close relationship between international law and world law, but it is intellectually useful to make the distinction between the two. World law is likely to grow.

The earlier heads of state to face an international court had already lost power prior to being arrested: Slobodan Milosevic of Serbia; Charles Taylor of Liberia; Radovan Karadzic of the Republika Srpska, the Serbian unit of Bosnia-Hercegovina. Taylor and Karadzic have not yet been tried.

The fate of al-Bashir is uncertain. Only speculation is possible. He originally came to power in June 1989 as the "front man" for the intellectual ideologue Hassan al-Turabi, who became speaker of the parliament. Al-Turabi had the intellectual vision of a new Islamic-based society. Al-Bashir had no ideas, but as a military man with an outgoing personality he fitted the image of a head of state. Al-Bashir and al-Turabi parted ways in February 2001. Al-Bashir's power base is narrow, mostly security people from the army and the police. My guess is that he will be eased out of power and go into exile in some "safe haven" such as Arabia, which was willing to take in [Idi] Amin Dada of Uganda whose crimes were at least as evident.

In the meantime al-Bashir is still able to make life worse for the people of Sudan. His first move was to expel 13 foreign humanitarian NGOs and to close down one of the more active Sudanese relief agencies. Some observers fear that the situation in Sudan could get worse without al-Bashir, but it is difficult to see how the situation can get worse.

There is no obvious replacement for al-Bashir from within his own camp. However, there is a good deal of political talent in Sudan, if the political structures were more open. There are probably a good number of people who see themselves in the president's chair once al-Bashir is pushed out. Hopefully, there can be enough international pressure to speed his departure, even if his arrest and transfer to the ICC is unlikely.

Leaders of the African Union and the Arab League are watching the situation closely in a state of near shock. If one of their own can be held responsible for crimes against humanity by the ICC, does this not open a courtroom door for many of them?

After the ICC arrest warrants, things are starting to fall into place. Hassan al-Turabi "for reasons of health" was released from jail in Port Sudan on March 9 and sent by government plane to his home in the suburbs of Khartoum. Al-Turabi has been, since his break with al-Bashir in 2001, in and out of jail but most of the time under house arrest. In January 2009, after suggesting that al-Bashir was guilty of the crimes charged by the ICC and should give himself up to the Court, al-Turabi was re-arrested and placed in a prison in Port Sudan, far from his supporters, many still in government service in Khartoum. Al-Turabi has a good number of people influenced by his thinking in all sections of the Sudanese elite, including among the Darfur insurgencies. His release is a sign that a post-al-Bashir future is being considered, though not yet openly discussed.

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This story first appeared March 10 in Toward Freedom.

See also:

DARFUR AND SUDAN: TOWARDS REVOLUTION
Justice & Equality Movement Seeks Power, Not Separatism
by Savo Heleta, Pambazuka News
World War 4 Report, November 2008

PRESIDENTS IN THE DOCK
An End to Africa's Reign of Impunity?
by Michael Fleshman, Africa Renewal
World War 4 Report, February 2007

From our Daily Report:

Darfur rebels sentenced to death in Khartoum attack
World War 4 Report, April 25, 2009

International lines drawn in Sudan war crimes warrant
World War 4 Report, March 15, 2009

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Reprinted by World War 4 Report, May 1, 2009
Reprinting permissible with attribution