ICC indictment of Sudanese President Raises Questions

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On July 14, chief prosecutor of the International Criminal Court (ICC) requested a warrant for the arrest of Sudanese president Omar al-Bashir on charges of genocide, war crimes, and crimes against humanity. In the ICC’s first ever attempt to indict a sitting head of state, prosecutor Luis Moreno-Ocampo has stated that he has sufficient evidence to affirm long-standing accusations against Bashir regarding his role in the campaign of rape, murder, and pillage in Darfur. Ocampo told the ICC, “The prosecution evidence shows that al-Bashir masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups. … His alibi was a ‘counterinsurgency’. His intent was genocide.”

Human Rights organizations have accused the Sudanese government of playing the lead role in organizing and mobilizing the Janjaweed militias since their campaign of terror in Darfur began in 2005, which has since then caused up to 300,000 killed and over 2 million displaced.

While its actions are in the interest of justice, will an ICC indictment bring peace to Sudan? The violence in Darfur is unfortunately only part of a long history of civil conflict in Sudan, historically between the government of the north and the marginalized but resource-rich south. In 2005, the government of Sudan signed a peace agreement with the main rebel group in the South, the SPLM, but has demonstrated minimal success in implementing it. Delays in political processes and recent violence against the south begin to tell of the peace process’s delicate nature. Meanwhile, violence in Darfur has descended further into chaos, while the U.N. peacekeeping mandate remains under-manned and poorly equipped to take on the complicated risks and challenges posed in the region.

Indictment’s Risks

Is the immediate pursuit of justice against the current Sudanese president a prudent act on the part of the ICC?  On the one hand, the indictment of Bashir is the opportunity for well-deserved justice to be brought against the leader and to be delivered to the long-suffering victims in Darfur. At the same time, removing the head of state would have serious implications for a decade-long peace process, including substantial concerns about who would take his place and how that decision would be made. Furthermore, especially considering the president’s longstanding tensions with Western powers and his reluctance to support the U.N. mission in Darfur, Bashir’s resistance to the international proceedings could cause a backlash against peacekeepers and undermine any hope of a future role of the international community in peacekeeping efforts.

The ICC, which came into affect under the Rome Statute in 2002, is charged exclusively with enforcing justice, rather than the pursuit of any political objectives, to which it is supposed to be immune.  Signatory nations did, however, establish a provision granting the United Nations Security Council to Council authority to suspend the ICC’s actions as some way for the international community to prioritize the interests of peace over the pursuit of justice

The United Nations Security Council, which just recently renewed the Darfur peacekeeping mission mandate, has expressed willingness to consider suspending Bashir’s indictment, although the United States has rejected such a potential get-out-jail-free card for Bashir.  However, some analysts have emphasized that this possibility of suspension grants the UN Security Council important leverage that could play an enormous role in encouraging progress toward peace. This possibility has had interesting effects on the ground in Sudan: according to The New York Times, there has been “a swift and radical reordering of the fractious political universe in Sudan, driven in part by national pride but also by deep-seated fears that the nation could tumble into Somalia-like chaos if Mr. Bashir were removed as president.”  In the interest of proving that removing Bashir would disrupt a delicate peace process, the Times reports, Sudanese officials have been more accommodating and cooperative on peacekeeping and humanitarian efforts in Darfur and more determined to show progress in implementing the peace agreement.

So is the indictment a good or bad thing? Can it contribute to peace? Is the ICC becoming a political tool in this circumstance? What role should the pursuit of justice play relative to the pursuit of peace? Should the UN decide whether the interests of peace trump justice? What have we learned from past instances, such as the indictments of rebel leaders in northern Uganda or the DRC? Should the ICC have waited in this circumstance? Does an indictment of a head of state undermine the sovereignty of a nation? AFJN joins many institutions and organizations, including the African Union, members of the Security Council, and even the head of the SPLM, in expressing concern over the potential of such an indictment to disrupt the peace process and incite further violence against peacekeepers in Darfur.  We at AFJN believe this issue raises not only crucial questions in the process by which peace must be achieved for the people of Sudan, but important questions about the role and functioning of the ICC and broader questions about international law and its approach to justice as well.

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