بسم الله الرحمن الرحيم
Answer to Question
Bashir's case on the Darfur issue in the International Court of Justice?
What is the current status of Bashir's case on the Darfur issue in the International Court of Justice? Presently one observes a lessening in the acuteness of tensions between Europe & America, does this imply that they are closer to a solution on these issues?
First of all: To fully answer the question, it is necessary to present the relevant details of the issue:
1. The ICC is a European initiative designed to strengthen their interests under the umbrella of international law as well as to challenge US hegemony. The ICC was created in 1998 by a treaty known as the Rome Statute. The ICC is supposed to be an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes. The ICC is intended as a court of last resort for such crimes and intervenes when national justice systems do not take effective action.
2. The United States signed the Rome Statute on December 31, 2000, but the US Congress never ratified the treaty. Shortly before the ICC opened in 2002, the Bush administration "unsigned" the Rome Statute, which President Clinton had approved before leaving office. President Bush subsequently signed legislation authorizing military action, should the court arrest an American, and curbed U.S. dealings with the tribunal. Since then America has been hostile to the ICC.
3. Despite the US not being party to the Rome Accord, as well as Sudan not being a signatory, the European Union, especially France & Britain have succeeded in bringing local as well as international popular pressure and extracted a resolution from the UN Security Council to refer the Darfur case to the Internal Court of Justice despite Sudan not being a signatory to the Accord by citing an article whereby the court has the right to pursue any case on its own when it feels that it threatens the world's peace & security. Thus the Europeans, especially France exploited the events in Darfur and exaggerated the crimes taking place there. They projected this to create a public opinion of lawlessness and threat to peace due to the exodus of millions and killing of tens of thousands which amounts to genocide and war crimes. France and England attributed these crimes to the Sudanese government and the Janjaweed militiamen under Sudan government while turning a blind eye to the crimes committed by the rebels who enjoy patronage of the European nations particularly France.
4. Thus France & Britain were able to create public sympathies against the President Bashir's Sudanese government with regard to the Darfur events. The Europeans so successfully achieved this that America, despite knowing that the resolution no.1593 that sought to refer the issue to the International Court of Justice was which was the handiwork of the Europeans and aimed to pit an end to the US influence in Sudan, yet the US did not exercise its right to criticise it during the voting in April 2005 and merely abstained from the vote! Thus the resolution received 11 votes in favour and none against it. Four countries abstained, namely, Algeria, Brazil, China and the US, although America had during the discussions on the resolution threatened to abstain from voting, it could not muster courage to go against it, such was the intensity of the public opinion created by France & Britain against the Sudanese government led by Bashir.
5. In February 2007, The ICC prosecutor, Luis Moreno-Ocampo requests the issuance of summons against Ahmad Muhammad Harun, former Minister of State for the Interior of the Government of Sudan, and Mr Ali Muhammad Ali Abd-Al-Rahman also known as Ali Kushayb, alleged leader of the militia(Janjaweed). The Sudanese government dismisses the jurisdiction of the court. On April 27, 2007, the ICC issued two arrest warrants for Ahmed Haroun and Ali Kushayb. The warrant for Haroun lists 42 counts including murder, torture and persecution, while the warrant for Kushayb lists 50 counts including murder and intentionally attacking civilians. Sudan immediately rejects the handover of the two suspects.
6. For the next eight months Sudan's intransigence continued in the face of strong European pressure to handover the 2 suspects. Finally in November 2007, the EU led by Britain asked the UNSC to apply more pressure on Sudan. "It is frankly an insult to the UNSC that one of the indictees charged with crimes against humanity in Darfur has been appointed a minister in the Sudanese government. I am concerned that when the prosecutor of the ICC reports to the UNSC next month, he will have little positive to say and we will have to address that," said British Ambassador John Sawers. This was followed by an immediate flurry of demands by rebel leaders loyal to Britain and France who implored the UNSC to take strong action. Abdel-Wahid Al-Nur, leader of the rebel Sudan People's Liberation Movement (SLM), told Sudan Tribune that achieving peace in Darfur requires "ending the culture of impunity in Darfur". The rebel leader said that the UNSC must ensure that Sudan complies with the arrest warrants as mandated by resolution 1593. He warned that lack of action by the UNSC on the matter "will be construed as lack of resolve by the council". On December 3 2007, the Darfur rebel group Justice and Equality Movement (JEM) called on the international community to stand behind the International Criminal Court (ICC) in the work it is doing in Darfur. Ahmed Hussein Adam. "There will be no lasting peace in Darfur without enforcing justice" JEM spokesperson Ahmed Hussein Adam told Sudan Tribune by phone from London. It was also during this period, the Ocampo announced that he was going to up new cases.
7. On May 22 2008 the EU parliament urged the EU to freeze the assets of Sudanese leaders who don't cooperate with the ICC. ICC's chief prosecutor also revealed that he would announce details of a new case against senior leaders of Sudan's government. Furthermore, ahead of the EU-US summit, French ambassador to the United Nations, Jean-Maurice Rupert said, "France and the European Union are ready to consider additional measures against the government of Sudan if it continues to refuse to cooperate. All the Europeans present supported me. It's the first time that six European countries (those in the U.N. Security Council) state clearly that this U.N. resolution must be respected."
8. Eventually, on July 14 2008, the EU via the ICC succeeded in indicting Omar Bashir. Moreno-Ocampo filed 10 charges: three counts of genocide, five of crimes against humanity and two of murder. Judges were expected to take months to study the evidence before deciding whether to order Al-Bashir's arrest.
In this way, the Europeans were successful in bringing Bashir to prosecution and thereby dealing a blow to American influence in Sudan by weakening it's agent Bashir who was accused of war crimes in the International Court of Justice!
9. In the meantime the US worked to preempt implementation of the court's decisions especially the serious ones concerning prosecution of Bashir, this despite the Europe successfully mobilising public opinion against Bashir government's war crimes as well as the international respect & credibility of the court's investigations. To this end, the US worked as follows:
A- On April 26 2008, the Bush administration in the face of international pressure announced that the US now accepted the "reality" of the International Criminal Court, and that Washington would consider aiding the Hague tribunal in its investigation of atrocities in Sudan's Darfur region.
B- America was becoming alarmed at the pace of developments at the ICC and issued unofficial warnings which later were to become the mainstay of her agents' position over Sudan and Darfur. Former US special envoy to Sudan Andrew Natsios warned: "If the ICC goes ahead with the threat mentioned in the newspapers that they will indict further senior figures within the Sudanese government then we will drive the country closer to dissolution."
They further fortified this argument after the court clearly accused Bashir and the US then focused its arguments that prosecuting him will adversely affect the peace process in Darfur and throw it off balance...
C- America mobilized her agents in Africa and the Arab world to stall ICC's initiative to indict Bashir. America sent Amir Mousa to persuade Sudan to either try Haroun and Kushayb in a regional African court or try them in a Sudanese court. In doing so, America believed that the charges against Bashir could be suspended by invoking Article 16 and that the momentum behind ICC's case would fizzle out. This is because according to the Rome Statue the ICC will not look in a case that has been prosecuted in local courts. The African Union (AU), Arab League and the Non-Aligned Movement (NAM), Uganda, Kenya, Tanzania, Organization of Islamic Conference (OIC) and other countries loyal to America.
10. The Europeans sensed that America was on the back foot, so they continued to apply pressure on Sudan and their agents started to publicly criticize those supporting Sudan. "I really fear that the Arab League will find itself in a position where it is conspiring with the Sudanese government against the people of Darfur. In the long run this may turn out disastrous" the Justice Equality Movement (JEM) official said. The official also criticized the AU. He said, "Article 4 of the AU's Constitutive Act confers the right by the body to step in when there are grave violations of human rights in any member state. This includes war crimes, genocide and crimes against humanity. So why did the AU not invoke this clause? Do they not think that the situation in Darfur is severe enough after 5 years?"
11. Along with this, the Europeans especially the French realised that America had successfully mobilised the Organisation of African Unity and therefore they began to engage the representatives of the OAU in discussions. During these meeting, they cited the ‘gains' which they wanted to achieve as against ‘softening' of their stance and concluded that they must negotiate with the US on common grounds instead of engaging the US on the same course, which they argued would be futile. As stated in the statements of its officials, this was not just pertaining to the prosecution of Bashir or even insisting of handing over the accused Haroun & Ali, to the ICJ, but rather in order to achieve the gains in their negotiations. The following points indicate this:
A- French Ambassador to the UN Jean-Maurice Ripert said, "We had extensive meetings with representatives of the African Union (AU) and I think we are passing the same kind of messages [to Sudan] which stop the killings, stop the military action in Darfur...Do what you can do to alleviate the human suffering and improve the humanitarian access to Darfur...increase and improve the capacity of the authorities to participate in a political dialogue with all political forces....improve your relationship with Chad."
B- On July 15 2008 , French Ambassador Jean-Maurice Ripert and British Ambassador John both said it was "not too late" for the Sudanese authorities to cooperate with the ICC over the indictment of Humanitarian Affairs Minister Ahmed Haroun and former Janjaweed militia commander Ali Kushayb. In other words, Bashir could avoid the charges if Sudan handed over Haroun and Kushayb. To spearhead these efforts Britain instructed Libya, South Africa and Qatar to get involved.
C- On July 27 2008 Sudan's foreign minister disclosed that Britain and France had urged Sudan to cooperate with the ICC and hand over the two suspects wanted by the court for crimes against humanity. He also revealed that both countries had requested Sudan to facilitate the deployment of Darfur peacekeepers and to swiftly find a political solution to the conflict.
D- The France, Britain and America unanimity over a Libyan sponsored amendment to the resolution. The amendment called for the freezing of any ICC indictment against President Omar Hassan al-Bashir.
E- The Sudanese justice minister Abdel-Basit Sabdarat announced the appointment of a special prosecutor Nimr Ibrahim Mohamed to look into human rights abuses committed in war ravaged region of Darfur since 2003. On September 1 2008 Nimr Ibrahim Mohamed confirmed that he was investigating allegations against a militia leader Kushayb in connection with Darfur war crimes. He said, "We are continuing our interrogation of Ali Kushayb who is accused of committing war..."
F- France accepted that Haroun and Kushayb could be tried in Sudan. Ripert said, "I said it repeatedly here. Whatever they do they have to cooperate officially with the ICC. If they want to trial their own citizens in their own countries this is allowed by the [Rome] treaty. But they have to do that in agreement with the ICC. It is never too late to cooperate." Later, Sarkozy speaking to reporters at the UN headquarters in New York further watered down France's demands with regards to the two suspects. He said,"We want those accused of genocide not to stay as ministers in a government in Sudan" [Sarkozy said referring to Haroun.]. Sudan responded by detaining Kushayb and assured France that he would be tried. The Sudanese justice minister Abdel-Basit Sabdarat said, "Kushayb will be tried in Sudan's domestic courts. He is under investigation...."
G- On October 15 2008, the judges of the ICC requested more time before issuing an arrest warrant for Omar's arrest.
Secondly: Now, in the light of the aforementioned, we may answer the question:
The Darfur issue and that of Bashir in the ICJ is moving towards a compromise between America and Europe and this includes a way out of this crisis to the effect that Haroun & Ali may be tried locally and Bashir's prosecution will first be a low-key affair before being annulled. But the gains for the Europeans especially France & Britain are that they get a foothold in Darfur through the negotiations by involving their proxy rebel movements effectively in the government as well as for the security in Chad...
Since the conflict, as indicated above is moving towards a compromise solution which require intense political struggle and pressure tactics to heat up the atmosphere in order to improve the compromise settlement, all of which comprises ‘give & take' as well as patience... this is not an easy solution, at least not in the foreseeable future. In any case, this is not expected to materialise before a new US administration is in place in January 2009. Even after this, it will require more than a while before more than one influential parties can intervene in the region.