Global Policy Forum

By Thalif Deen

The ongoing political crisis in Sudan is expected to worsen in the face of a rash of threats and warnings following the indictment last week of President Omar Hassan al-Bashir by the International Criminal Court (ICC) in The Hague. The beleaguered Sudanese president has threatened to expel diplomats from Khartoum and throw out more humanitarian organisations - in addition to the 13 that were run out of town last week - in retaliation for the indictment. At the same time, there is considerable speculation that some, or all, of the 30 African countries who are state parties (of a total of 108) to the Rome Statute that created the ICC, may decide to pull out, threatening the virtual collapse of the world's key criminal court.

Michael Ratner, president of the New York-based Center for Constitutional Rights, told IPS the creation of the ICC was a major step forward in accountability for human rights atrocities. "Withdrawal is not great for the court's legitimacy, but it is the United States and other major powers that have done most to diminish its power," he pointed out. The U.S. failure to join (the ICC), and its undercutting of the court, has sent the message that this is a court that can act against weaker states. "It gives those states an excuse for questioning the court's legitimacy, especially when coupled with the court's failure to act against those from Western states," said Ratner, who is also an adjunct professor of law at Columbia University where he lectures on human rights litigation. "Unless (Luis) Moreno-Ocampo (the Chief ICC Prosecutor) includes human rights violators from these states as seriously within his mandate, the court is in trouble," he said. The U.S. Central Intelligence Agency (CIA) ran a secret torture site in Poland, an ICC state. "But where is the court?" Ratner asked. Last week's arrest warrant on al-Bashir charged him with war crimes in the strife-torn region of Darfur, one of the world's volatile political hotspots. The conflict has resulted in 300,000 dead and 2.7 million displaced, according to U.N. estimates. Many international rights groups welcomed the announcement of the warrant against Bashir, who has been accused of orchestrating mass killings and ethnic cleansing of villages in the region though 'janjaweed' militias.

However, the much-heralded criminal court has so far put only one culprit on trial, Thomas Lubanga, a warlord from the Democratic Republic of Congo (DRC), and convicted none, six years after the ICC's creation. Of the 13 against whom warrants have been issued by the ICC, four are in custody, the rest are fugitives or presumed dead. All 13 are either from Uganda, DRC, the Central African Republic or Sudan. The arrest warrant on al-Bashir was unprecedented because it was issued for the first time on a sitting head of state. According to published figures, an estimated 300,000 people have died in Darfur, either due to the ongoing conflict or disease and malnutrition. The deaths have occurred over the past five years. A group of rebels has been fighting government forces and their proxies, the Janjaweed Arab militia men, since 2003. Still, a legitimate question that is being asked by some Africans defies answer: why is the ICC focusing mostly on African leaders and African warlords? But supporters of the Court, including Nobel Laureate Desmond Tutu, say that active ICC investigations in Africa are not because of prosecutorial prejudice but because three of the countries involved (Central African Republic, DRC and Uganda) themselves requested ICC intervention.

Since Sudan is not a State party to the ICC, the Sudanese case was referred to the court by the 15-member U.N. Security Council, which has a legitimate right to do so, according to the Rome Statute. But despite this defense, an African diplomat told IPS: "Still, aren't there any perceived war criminals in the U.S. and Western Europe?" In Iraq, over one million people - mostly civilians - have been killed since the U.S. invasion about six years ago. In Afghanistan, thousands of civilians have been killed by U.S. and NATO military forces. The killings have been euphemistically described as "collateral damage." And more recently in Gaza, over 1,000 Palestinians, mostly civilians, were killed by the Israelis. An indignant Sudanese Ambassador Abdalmahmood Abdalhaleem Mohamad described the international justice system as "Euro-American." It's the same justice system, he said, that callously witnessed the destruction of Iraq, Afghanistan and Gaza, but never did anything about it. The United States, which like Sudan is also not a party to the ICC, negotiated immunity from war crimes prosecution for its soldiers - if and when they serve in U.N. peacekeeping missions. "America is an opportunist country," the Sudanese envoy said. "They want to use the ICC without being a party to it." In effect, he said, U.S. soldiers can have immunity, but not the president of Sudan. At a U.N. press conference last week, he also challenged reporters to show him any photographs or television footage from Darfur that would equal the destruction of human lives and homes in Gaza, Iraq and Afghanistan. "Show me a single footage," he demanded of journalists, none of whom responded. "It's a big lie. And lies have become a weapon of mass destruction in our situation," he added. He also pointed out that the United States once destroyed a pharmaceutical factory in Sudan based on false intelligence that it was a Sudanese chemicals weapons factory.

At the recent conference in Sharm al-Shaik, the United States and Western donors pledged about 5.0 billion dollars to reconstruct Gaza which was bombed by Israel during its 22-day conflict with Hamas. "Did anybody ask who was accountable for this damage and destruction?" Asked why Sudan was being singled out, the Sudanese envoy said Western nations were eyeing Sudan's newly-discovered oil riches in one of the largest countries in Africa. The Western nations have been marginalized, both in oil exploration and arms supplies, by China, which is one of Sudan's closest political, economic and military allies, according to an African diplomat. "The UK and France harbor a desire to revive their colonial dreams in Sudan," the Sudanese envoy said. Sudan has said it rejects the warrant on its president and will refuse to cooperate with the ICC. The Sudanese government seems to have the political support of several powerful regional and international organizations: the African Union, the League of Arab States, the Organization of Islamic Conference (OIC) and the Non-Aligned Movement, all of which collectively account for more than two-thirds of the U.N.'s 192 member states.

As a result, it is very unlikely that any country, particularly Arab or African, will follow up the ICC warrant by arresting al-Bashir if he lands on their soil. The Sudanese president is expected to defy the ICC warrant by attending an upcoming summit meeting in Qatar (which incidentally is not a state party to the ICC). When Richard Dicker of Human Rights Watch was asked about the double standards in the international justice system, he admitted there was no denying the fledgling system was "flawed" and the playing field was uneven - between Westerners and the rest of the world. "But to those who said such tribunals would never indict an American or European leader, (the ICC) decision nevertheless showed that not even the president of a country was above the law. The work was how to correct the imperfections in the system." Asked about ICC's double standards, Ratner of the Center for Constitutional Rights told IPS: "The court and some human rights groups seem to think that the best strategy is to go after the easy targets that don't have a lot of political power." "As can be seen, this is a mistake. It is a short-sighted strategy that will delegitimise the court. It gives the weaker countries an excuse," he said.