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ICC case against Sudan's al-Bashir stirs controversy

Latest update : 2008-07-20

The ICC's requested indictment of Sudanese president Omar al-Bashir has raised a ripple of concern across the international community. African leaders worry that the gesture could weaken the country's already fragile peace process.

Once again, the International Criminal Court (ICC) is targeting an African country. The requested indictment of Omar al-Bashir for war crimes in Darfur has sent shockwaves throughout the world. This is the first time the ICC – the only permanent international tribunal – is going after an incumbent head of state. However, the legal proceedings once again raise the controversial issue of a Western-modelled “universal justice”.


“The requested indictment marks a major step forward in international justice,” says an enthusiastic Jean-Marie Fardeau, head of the NGO Human Rights Watch France. For him, the ICC’s legal action against a serving president signals the end of impunity for the world’s leaders.


Yet his enthusiasm is not shared by all. Western leaders, for a start, were scarcely impressed – even though they had originally referred the case to the ICC. Meanwhile, many of their African counterparts reacted with anger. Though stressing its “rejection of impunity,” the African Union (AU) expressed “concern” over the consequences for the delicate peace process in Sudan.


“The population in Darfur will pay a heavy price,” fears Roland Marchal, who specializes in Sub-Saharan Africa at the French-based CNRS research centre.    


The ICC, a toy of the West?


Critics argue that the Court’s decision has prompted political unrest across Africa, as well as hurting diplomatic activity between Sudan and its neighbours. In the wake of ICC prosecutor Luis Moreno-Ocampo’s statement, AU officials were quick to point out that the new case concerned an African conflict, just like the ICC’s previous four cases.


“The developing world sees the ICC and Western law as unrelentingly hounding the (African) continent,” argues Roland Marchal. “African public opinion views the Court as a western instrument to re-colonise Africa,” he explains, while adding that both politicians and the wider public share this view.


“Furthermore, the ICC only targets the major powers’ foes,” he suggests, pointing out that neither Angola’s Dos Santos nor Chad’s Deby ever faced charges. “Over the past few days, the local press has been asking why the Court steers clear of Iraq, or Palestine…”


Members of the UN’s Security Council do indeed hold significant sway over the ICC, by virtue of the specific procedure required to submit a case to the Court.


Géraldine Mattioli, member of Human Rights Watch’s International Justice bureau in Belgium, explains why: “If a member of the Security Council wants to veto efforts to refer a case to the Court, it is free to do so. Hence, to put the ICC in charge of, say, Iraq, is no easy task. This is the Court’s major limit.”


Contacted by France 24, the ICC declined to comment on the issue, on the grounds that a judicial organisation should take no part in political debates.


For the Court to take up a case, one of the accusing or accused states needs to have ratified the Rome Statute, which gave rise to the ICC in 1998. So far, 107 countries have ratified the Statute and recognise the Court’s legitimacy. Yet, these do not include Sudan, the US, China or India. In their case, only the UN Security Council can refer to the ICC, which is precisely what happened with Sudan’s al-Bashir.


Nonetheless, Géraldine Mattioli is convinced of the magistrates’ independence. “The prosecutor’s proceedings against al-Bashir are a case in point,” she explains. “Governments are lukewarm and diplomats are concerned, but this has not deterred Ocampo from going ahead.”


Restricted enforcement


Coming soon after the arrest of the former Congolese rebel leader Jean-Pierre Bemba in Belgium on May 24, the requested indictment of al-Bashir suggests the ICC is getting bolder.


Yet, execution of its decisions remains somewhat constrained. Indeed, the Court has no police body to enforce its rulings. The problem came to light in 2007, when an international arrest warrant was issued for the Sudanese dignitaries Ahmad Harun and Ali Kushayb, though neither was effectively troubled.


The same difficulty could well emerge with Omar al-Bashir, if the ICC decides to go ahead with the arrest warrant. Once again, the Court will have to rely on the goodwill of a reluctant international community. “When it comes to cooperation in judicial and logistical matters, the major powers’ backing tends to be half-hearted,” explains Géraldine Mattioli.


Still, Damien Helly, Sub-Saharan Africa specialist at the EU Institute for Security Studies (EUISS), is adamant that the Court can wield significant influence.


“We must not underestimate the impact this arrest warrant could have if it is finally issued,” he argues, pointing to the examples of the former Yugoslavia’s Milosevic and Liberia’s Taylor. “In those cases, the consequences were tangible. The indictments entailed either negotiations for the culprits’ exile, regime changes through popular revolt, or conflict management through diplomacy.”


According to Helly, “if an arrest warrant is issued against al-Bashir, the Sudanese leader could be outlawed by the international community. International pressure could limit his room for manoeuvre, at least outside his country. This is where the Court comes in handy.”     


Date created : 2008-07-20