ICTJ in the News

July 15, 2008

SPECIAL REPORT: Arrest Warrant Sought for Sudan's President

Middle East Times

By Claude Salhani
Editor

An arrest warrant for Sudanese President Omar al-Bashir of Sudan was requested by the prosecutor of the International Criminal Court (ICC) in The Hague, demanding that the Sudanese president be made to stand trial for alleged genocide and crimes against humanity committed in Sudan's Darfur region.

The prosecutor claims to have irrefutable proof that the government in Sudan under the leadership of Bashir used all the resources at his disposal - the army, the police and the Janjaweed militias - to carry out a sustained program of ethnic cleansing using hunger, rape and fear as weapons.

For years since the conflict has been raging human rights groups, the United States Congress as well as the former U.S. Secretary of State Colin Powell has been saying that genocide is taking place in Darfur. However the United Nations has been reluctant to accept that genocide is indeed taking place, as that would legally bind it to take appropriate steps to put a stop to the killing.

But a forced military intervention in the Sudan would require the formation of a U.N. strike force, rather than a peacekeeping force, which is more in line with what the United Nations is accustomed to.

Meanwhile, more than 80,000 people have died in what was described by the United Nations as one of the world's worst disasters. The conflict has produced more than 1.5 million refugees who have been resettled in 127 camps in an area covering the size of France.

The Sudanese government rejected the request for the arrest warrant, much as they have refuted claims of casualty figures put forth by the international community and continue to hamper the work of international nongovernmental organizations.

While Sudan is one of the weakest countries in Africa, it finds itself negotiating from a position of power largely due to the systemic imbalance of power that exists in the country: Sudan is weak, but is using international law as a shield.

"The duty of states not to intervene in the internal or external affairs of another state received recognition in Articles 1 and 3 of the draft Declaration on the Rights and Duties of States, adopted in 1949 by the United Nations International Law Commission."

However, the government must act immediately to order government forces and militias to cease their campaign of ethnic cleansing and attacks on civilians. It must disarm, disband and withdraw the Janjaweed in Darfur. It must conduct prompt, impartial and independent investigations of abuses by Janjaweed and Sudanese military, prosecute perpetrators and provide reparations for victims, recovering and returning all property.

So long as the current regime remains in charge, none of these requests are likely to be met.

According to the New York-based International Center for Transitional Justice, this is a first for the ICC which has never tried heads of states, unlike the International Criminal Tribunal for the former Yugoslavia, or ICTY, which indicted President Slobodan Milosevic of Serbia in 1999 for crimes against humanity and other charges. The Special Court for Sierra Leone charged President Charles Taylor of Liberia for war crimes and crimes against humanity committed in Sierra Leone.

The International Criminal Court in the Hague was successful in arresting and trying the former Serb President Slobodan Milosevic and numerous others involve in war crimes and Bosnia and other parts of the Balkans.

As to the question of why the ICC is investigating Sudan at this point?

The International Criminal Court, created by a 1998 treaty known as the Rome Statute, is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes.

In 2005, the United Nations Security Council voted to ask the court's Office of the Prosecutor to investigate the situation in Sudan's Darfur region. The decision to trigger the court's jurisdiction on Sudan was not made by the prosecutor but by the Security Council.

Before referring the case to the ICC, the Security Council itself had ordered an investigation into Darfur; its independent commission of inquiry found evidence of very serious crimes. The prosecutor then conducted his own investigation.

Whether Bashir will have his day in court remains to be seen. In the meantime, Sudan has called for an emergency meeting of the Arab League to discuss the issue.

"SPECIAL REPORT: Arrest Warrant Sought for Sudan's President" was originally published by Middle East Times.