International Dialogue

On 14 July 2008, Chief Prosecutor of the International Criminal Court Luis Moreno-Ocampo requested an arrest warrant be issued for Sudanese President Omar Hasan Ahmad al-Bashir. The move is ostensibly justified on procedural grounds; its success, however, like other action taken by the international community on Darfur, remains uncertain. Mr. Ocampo is pursing 10 charges of genocide, war crimes and crimes against humanity. He claims that President al-Bashir bears criminal responsibility for the conflict in Darfur, which has cost the lives of an estimated 300,000 persons and displaced another 2 million.

To frame the debate, this article distinguishes between two advocacy groups. Note: In practice, these strict divisions are not necessarily applicable. The pro-justice movement combating international impunity lauds Mr. Ocampo’s move. Others are apprehensive. Exponents of peace and security, particularly those on the ground, fear Mr. Ocampo’s move may only aggravate an already desperate situation. Although this group is in principal supportive of Mr. Ocampo’s actions, it regards his timing as potentially inopportune.

Mr. Ocampo’s warrant request must endure the judgments of the Pre-Trial Cambers (PTC) and possibly the UN Security Council. If a warrant is issued then the ICC has to deal with the serious challenge of apprehending President al-Bashir. Security advocates worry about the possibility of resurging hostilities in Darfur. President al-Bashir, in response to an indictment, may commit himself to another offensive. Such an environment could undermine the efforts of both justice and security advocates, and paradoxically, help President al-Bashir ward off arrest.

Pro-Justice Hurdles

Having filed for a warrant request with the Pre-Trial Chambers (PTC) of the ICC, Mr. Ocampo must now await an official indictment to continue his prosecution of Sudanese President al-Bashir. The foremost hurdle to Mr. Ocampo’s warrant request is his decision to charge President al-Bashir with the crime of genocide. Some claim the charge is overly ambitious. Unlike war crimes and crimes against humanity, genocide has a particularly high evidentiary threshold. Article 6 of the Rome Statute of the ICC stipulates genocide as an act “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Mr. Ocampo needs to have provided the PTC with sufficient evidence to meet the evidentiary threshold for intent as well as demonstrate the targeting of the Fur, Masalit and Zaghawa people of Darfur. He claims, “[al-Bashir]’s motives were largely political. His alibi was a ‘counterinsurgency.’ His intent was genocide. ” Despite Mr. Ocampo’s conviction, the crime’s provisions may require transcripts of communications, internal memorandums, and/or confessions unattainable by the Office of the Prosecutor (OTP). Credible and sufficiently thorough evidence, from Khartoum to Darfur could be difficult to assemble. As such, the PTC may reject Mr. Ocampo’s charge of genocide. An unfavorable result, even with war crimes and crimes against humanity charges still sticking, would stunt the prosecution’s momentum and raise issues concerning its sagacity.

A second, low probability/high risk hurdle to Mr. Ocampo’s investigation could come as a result of UN Security Council action. Article 16 of the ICC Statute states that should the UN Security Council deem an investigation detrimental to the restoration of peace and security, it can act to suspend an investigation at any time. The suspension is effective for one year and is renewable.

The most likely state to table such a resolution is China. Since the late-1990’s, China has invested heavily in the Sudanese petroleum sector – on the order of US$ 7 billion. China also imports oil in significant quantities from the Sudan. In 2006, with the barrel of oil hovering at US$ 60 a barrel, China’s oil trade with the Sudan amounted to roughly US$ 2.89 billion at free-market prices. Today, that figure may be twice as much. A net-importer of oil since 1993, China has courted relations with Khartoum to satisfy its booming energy demand.

Accordingly, China has motive to shield President al-Bashir from prosecution. The success, however, of a Chinese-tabled injunction is improbable. France, the UK or the US will in all likelihood exercise their veto power.

Pro-Security Concerns

For advocates of peace and security, a resurgent offensive by President al-Bashir – in protest of his indictment – either targeting Darfurians, AU and UN peacekeepers, or both, is the worst-case scenario. They argue that conditions on the ground would deteriorate significantly. The already devastating conflict would produce more, not fewer victims. Furthermore, they argue the deterrent function of the court risks disrepute.

Ironically, President al-Bashir authorizing a new campaign of violence improves the prospects for a Security Council injunction under Article 16 of the ICC’s Statute. A swell in the level of violence would support China’s argument for action: halting Mr. Ocampo’s investigation removes President al-Bashir’s motive for retaliation. Under such conditions, a Western veto on a rapidly deteriorating security situation could be regarded as imprudent. Conversely, supporting the resolution opens the door to ‘Munich Agreement’ critiques.

Yet again, a Security Council injunction is improbable. Veto powers France and the UK, both supporters of the ICC and both states with little strategic interest in the Sudan, need be dissuaded. If, however, contrary to expectations the Security Council does elect to intervene, President al-Bashir will elude indictment or arrest for a minimum of one year.

Chief-Prosecutor Moreno-Ocampo’s warrant request still needs to survive examination by the Pre-Trial judges. If successful, the ICC will have to orchestrate the arrest of a very uncooperative and fortified President al-Bashir. More unsettling, an official indictment further risks enraging President al-Bashir. His reaction may concomitantly undermine the work of international justice and security advocates.

Just today, an adviser to the President, Bona Malual, reiterated Khartoum’s now familiar position. If President al-Bashir were indicted, the Sudan would no longer be able to guarantee the security of international personnel on its territory. To downplay the warning’s malicious undertones, Mr. Malual added that revoking visas is the most far-reaching measure Khartoum would undertake. In any case, the cordial caveat bespeaks Khartoum’s determination to safeguard its sovereignty. The success of Chief Prosecutor Moreno-Ocampo’s case is not certain. Pitfalls and hurdles lie ahead.

by Claudio Guler
25 July 2008