What goes around comes around. The dictum could apply to the case involving Sudan’s President Omar Hassan al-Bashir who is hitting the headlines once again. The case started at the United Nations and returns there.
Almost exactly four years ago today, the United Nations’ Security Council ordered the International Criminal Court (ICC) to open an investigation against Bashir, an army general, because of his alleged involvement in war crimes and crimes against humanity in Darfur, a region of Sudan torn by a multilayered war involving the central government, ethnic rebels, and organized crime.
Involving the ICC was a political diversion designed to create the impression that the Security Council was doing something on Darfur when, in fact, it was doing nothing and did not wish to do anything.
At the time, the United States did not appear keen on the investigation. It had already concluded that what was going on in Darfur was genocide and that Bashir and his administration had a case to answer. However, the US has not signed the treaty that created the ICC, and continues to regard the new organ with some misgivings.
Last July, the ICC’s Chief Prosecutor Luis Moreno Ocampo, one of Spain’s most distinguished judges, requested an arrest warrant for General al-Bashir on charges of war crimes and crimes against humanity. The leader of Sudan became the third head of state, after Slobodan Milosevic of Serbia and Charles Taylor of Liberia, to be indicted by the ICC.
The past seven months have witnessed intense diplomatic manoeuvres designed to find a median solution. China and Russia, backed by France and Britain, have tried to persuade the Security Council to use Article 16 of the ICC’s constitution in order to fudge the issue.
For his part, President al-Bashir has tried to cast himself in the role of peacemaker in Darfur. Two weeks before the Security Council was to announce its verdict, he initialed a ceasefire with one of the rebel groups. (The group has already said it would renege if Bashir is removed from power.)
To appear indispensable, Bashir has also ordered a crackdown against his opponents, sending several key figures to prison, while also bribing a few others with cash and promises of lucrative jobs. The idea is that if Bashir is removed at this point the fragile equilibrium created in the Sudan since the tentative end of the war in the south might collapse.
Some observers even warn that Sudan, as a unified state, may be facing disintegration, triggering new conflicts through central and eastern Africa.
What we have here is a mixture of three issues that, while interconnected, must be examined separately if we are to make any sense of the situation.
The first issue, and perhaps the most important, is the role of the ICC.
A decade ago, when plans for creating the ICC were discussed in Rome, many of us supported the idea because we believed that such a court would be free of national political constraints.
The concept of “sovereign immunity”, established after the Congress of Vienna two centuries earlier, had shown its limits. Under that concept, government leaders could not be personally charged with crimes committed in the name of the state. It was thanks to that concept that the British House of Lords, the United Kingdom’s highest court, ruled against arresting Chile’s former dictator Augosto Pinochet during the latter’s stay in London. Under the same concept, no case could be brought against people like Saddam Hussein, Mullah Muhammad Omar and Milosevic.
The idea was that ICC would remove the concept of “sovereign immunity” altogether, making it clear that acts regarded as criminal under international law could not be re-interpreted as political ones in the name of raison d’etat.
However, is that the ICC has not done so.
All that it has done is to create a new, and vaguer, concept of “sovereign immunity” by giving the UN Security Council final say on who could be brought to justice. This gives the five veto-holding members of the council a supra-national power that belies claims of an independent justice. With political expediency overriding the principles of justice, the ICC could become just another instrument in the hands of five big powers. The council can order the ICC to investigate anyone they wish and, once a demand is made for an arrest warrant, decide whether it should be granted.
That not all of the five are democratic states based on the rule of law makes that fact even more alarming.
The second issue is the fate of the Sudan. Al-Bashir, who once held an uneasy coalition together, may have become a liability for the ruling elite. Engaged in a power struggle, that elite may not want to fight on two fronts- against domestic foes, and against the ICC and the UN. Jettisoning al-Bashir may become a tempting prospect for some within the elite.
Even then, the ruling elite cannot hope to transform al-Bashir into its scapegoat. If genocide took place in Darfur, it could not have been the work of one man. In any case, the ICC has already issued indictments against two key members of the elite, Ahmad Haroun, a Cabinet Minister, and Ali Khushayb, a militia leader, and is considering cases against five more. On balance, the present regime in Khartoum is a failure. It has shattered Sudan’s long-established rules of political conduct, squandered the nation’s resources ,and helped produce the tragedy in Darfur. Jettisoning al-Bashir would not efface all that.
The third issue concerns the situation in Darfur.
Despite occasional noises made to please do-gooders at home, the major powers are not prepared to allocate the political, financial and military resources needed to put off the fire there. The hunt for al-Bashir may have become a fig leaf designed to cover the political nakedness of the major powers when it comes to Darfur.