by Stefano Cera
In July 2008, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, under UN resolution 1593/2005, accused al-Bashir of genocide, war crimes and crimes against humanity, requesting the issue of an arrest warrant. According to several evidences, Sudanese government have been masterminding attempts to wipe out African ethnic groups Fur, Zaghawa and Masalit.
“Since five years, Sudanese Army and Janjaweed militia, both under Bashir’s control, have attacked and destroyed villages, then persecuted the survivors in the desert. Besides, those who managed to get to the Camps had to endure conditions such as to destroy them.”
According to Ocampo:
“His (Bashir’s) motivations were of political nature; his alibi was the insurrection; his goal the genocide”
The “ powers and the agents” acting under Bashir’s grip, would have killed 35.000 people directly, and between 80.000 and 265.000 indirectly, through their eradication from their villages.
In March the 4th 2009, seven months after ICC challenge – the first ever to involve a still sitting head of state – Chamber One of ICC issues a warrant for the arrest of Bashir on charges of crimes against humanity and war crimes but dismissing the accusation of genocide (with a majority of two on three judges).
The debate in the international community
The accusation, triggered a heated debate in the international Community that nourished after the arrest warrant.
According to Antonio Cassese (chairperson of ICID – International Commission of Inquiry on Darfur – in 2005), the initiative of the Court is particularly important as it “keeps public opinion attention on”, but of little practical effect, if not a boomerang, capable to frustrate the work done, considering the actual difficulties to make the warrant effective. For this reason, a subpoena would had been more pragmatic “In this way Sudanese President, in order to explain his reasons, would had been able to attend the Court as a freeman to contest the charges” (La Repubblica, March 25th 2009).
The international Community is facing two different priorities: dispensing justice, making the warrant effective or favouring peace process, by the means of Bashir himself, neglecting his responsibilities in Darfur onslaught.
Those who favour the second priority, fear the consequences of a sentence against Barshir, such as the risk of a sharper “polarization” of the opposite factions. The opposition movements, declared more than once, their unwillingness to dialogue with an internationally wanted person (JEM – Justice and Equalitu Movement – deserted Doha peace process just two month ago). From the opposite front, President Bashir could hamper the slow deployment of peacekeeping mission UNAMID and the action of humanitarian organizations (as already happened with the expulsion of thirteen non governmental organizations), with dramatic consequences over the population. Besides only a sound central government can deploy peace negotiations.
Therefore a wide front (Arab League,African Union, Non-Aligned Movement, Organization of Islamic Conference, Gulf Cooperation Council and, among UN partners, China – main Sudan Commercial partner – and Russia) requested the suspension of the indictment under article 16 of ICC Statute according to which UN Security Council (with the unanimity of its permanent members) has faculty to suspend a prosecutor inquiry or a criminal proceeding for a period – renewable – of 12 months.
Many experts over Sudenese matters favour this solution, such as Alex de Waal who was counselor of African Union during the mediation that brought to Darfour Peace Agreement in May 2006. Alex De Waal urges article 16 application fearing that President Bashir’s National Congress Party, could frustrate Darfur peace process, and the Comprehensive Peace Agreement signed by South Sudan in January 2005.
Others, such as Eric Reeves, do not believe a suspension to be effectual: “why should the impunity bring peace to Darfur? The followers of the process of peace ask us to trust a brutal and seditious government, that, in twenty years of power, has never respected any agreement with other parties. They ask us to believe that, from now on, things will be different” (Internazionale., n. 784, february 27th 2009).
Hypotesis of conditional suspension
The International Crisis Group, has emphasized that, according to the situation in Darfur, any suspension should be submitted to strict conditions such as the certainty that any kind of retaliation against diplomatic and civil servants will be avoided. Besides an actual change in government politics is strongly requested through the accomplishment of the following achievements: the institution of a scrupulous internal inquiry apparatus, able to identify the responsibilities in the crimes committed in Darfur, as pointed out by the very same UN General Secretary Ban Ki-Moon; an actual commitment to peace process, such as allowing opposition movements to attend the negotiations; Bashir’s commitment not to candidate himself at next presidential election (this last issue has been neglected as Bashir officially presented his nomination for next year election).
To achieve these goals, it’s crucial that all the countries and international organizations with stronger relationship with Sudan (China and Russia economically; Egypt, Lybia African Union and Arab League politically) do not back every Khartoum request but use their bounds as a leverage for a real change in the country, pointing out the risks of an international confinement.
The reasons of the arrest warrant supporters
Louise Arbour, former Prosecutor of the international court for ex Jugoslavia, has always declared that enforcing justice doesn’t mean to undermine peace but to foster it. That is the opinion of those who consider the suspension as a risk, adducing the following reasons: first of all it could set a dangerous precedent, able to undermine the credibility of both the Court and the UN; as a matter of fact, declaring Human rights negotiable, would diminish Bashir’s responsibility in persecuting Civilians, persecutions that could even worsen thanks to the impunity. Besides, suspension is feared to nullify Court efforts according to assumption “Justice delayed, justice denied”. In conclusion, arrest warrant could be an effective way to exert pressure for a change even in the same Darfur regime, torn inside by internal disputes. But this is not possible to achieve without a strong and unequivocal support to Court activity from every Nations.
