Global Policy Forum

Sudan: Security Council Stalled Over Indictment


By Thalif Deen

Inter Press Service
March 16, 2009

The political controversy that followed the indictment of Sudanese President Omar Hassan al-Bashir for war crimes in Darfur is expected to pick up steam once again with the arrival of an African Union (AU) delegation to press its case before the Security Council. A spokesman for the AU office in New York told IPS that no dates have been finalised yet, but the delegation is likely to arrive either in late March or early April. The AU, the League of Arab States and the Organisation of the Islamic Conference (OIC), three powerful political organisations with overlapping memberships, have criticised the decision of the International Criminal Court (ICC) to proceed with the indictment. They argued, among other things, that an arrest warrant on al-Bashir would jeopardise ongoing peace efforts in Sudan. The AU, which is taking the lead, is expected to invoke Article 16 of the Rome Statute that created the ICC, and which gives the Security Council the power to defer any investigations or prosecutions at least for a period of 12 months. But such a resolution is unlikely to be adopted by the 15-member Security Council, which is divided on the indictment. And, as of Monday, there was no action contemplated by the Council. The majority of the Council members, including the three veto-wielding permanent members, namely the United States, Britain and France, are opposed to any deferral. "The votes just don't add up - and the African Union, the League of Arab States and the OIC know this," says the New York-based Coalition for the ICC, a non-governmental organisation that was in the forefront of the global campaign to create the Hague-based court.

Asked about the proposed Security Council intervention, William Pace of the CICC told IPS: "The leader of the U.S. negotiators at the Rome treaty conference stated the purpose of Article 16, proposed by the U.S., was for the Security Council to act at the beginning of an investigation the Council thought could interfere with peace negotiations." In this case, he pointed out, the Security Council not only did not defer, but explicitly authorised a Commission of Inquiry on the crimes being committed and then asked the ICC to investigate and prosecute those responsible for the crimes. "There is no basis for the Security Council to offer a deferral to Omar al-Bashir," Pace said. "The Russians and Chinese knew at the time of the Security Council referral that the crimes involved the government of Sudan and thus likely the highest level officials who controlled the government and military," he added. Out of a total of 108 states that are parties to the ICC, 30 are in Africa. Bill Fletcher, Jr., executive editor of, has a different take on the indictment, telling IPS: "The indictment against al-Bashir is very unhelpful even if morally it is correct." He said the problems facing the people of Sudan go beyond President al-Bashir as an individual. "There is an entire regime in place. Going after one individual misses the point," Fletcher said. Second, he said, the ICC has no way of taking al-Bashir into custody. "In effect the indictment does not help bring about a political resolution of the ongoing situation in Sudan. Rather it encourages the al-Bashir government to remain firm in its position because it has little to lose."

While the al-Bashir government will need to be held accountable for the atrocities in Darfur, said Fletcher, the indictment does not focus on the critical need for a political solution to the conflict. Speaking on condition of anonymity, a senior U.N. official refuted the charge that the court was only pursuing African, not Western leaders: "Really, this is all hysteria." "As you know, the African countries - Uganda, Central African Republic and the Democratic Republic of Congo - are being looked at because they themselves petitioned the ICC," the official said. Sudan is being looked at because the Security Council sent it to the ICC, and neither Russia nor China nor African countries in the Council stopped it, the U.N. official pointed out. The fault does not lie with the ICC but with the member states who drafted a law that allows cases to go to the ICC only if they give their consent or the Security Council sends it to it, the source said. "Blame the nation states, not the ICC. The ICC prosecutor does not have the freedom to choose. And the bigger picture - what a message it sends to all heads of state and politicians - isn't that positive?" Asked about reports that some, or most, of the 30 African countries may withdraw from the court in protest, Steve Lamony, the CICC's Africa officer based in Uganda, told IPS: "No, I do not think that African states would pull out of the ICC, because if they did, it would be going against the spirit of article 4 of the constitutive act of the African Union which rejects impunity. The AU has emphasised several times that it does not condone impunity."

Lamony also said African states are also likely to perceive the news about the death threats to ICC Chief Prosecutor Luis-Moreno Ocampo, and suicide bombings in countries that support the ICC by the Coalition of Jihad and Martyrdom Movements, as attempts to hold the world hostage in order to condone impunity for perpetrators of human rights abuse. Meanwhile, in the recent ICC elections held in January 2009, over 10 judicial candidates from Africa threw their hats in the ring, far more than from any other geographical region. Two of the six newly elected judges are from Kenya and Botswana. The other African countries represented on the 18-judge bench include Ghana - vice president of the court and president of Pre-trial Chamber which issued the al-Bashir decision - Uganda and Mali. The CICC says that delegates from Africa in New York and in Brussels/Hague are far more supportive of the ICC then their counterparts at the AU," who are much less aware of the developments at the ICC." Within the governing body of the court, African countries are taking a leading role, with South Africa as the focal point for the review conference discussions.

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