There are seven charges against al-Bashir including crimes against humanity, murder, extermination, forcible transfer, torture, rape, attacks against civilian population and pillaging. The ICC confirms the statements which non-governmental organizations (NGOs) have been making to UN human rights bodies since early 2004.
The evidence against al-Bashir had been collected at the request of the UN Security Council and had been added to by the High Level Mission established by the UN Human Rights Council in December 2006 chaired by Professor Jody Williams, the 1997 Nobel Peace Laureate for her work on a ban on landmines. The High Level Mission confirmed that there is a high level of destruction, millions of people are displaced, and a large number of people have been killed 300,000 is the usual estimate. There is a refugee flow to Chad and a danger of the conflict spreading to Chad and the Central African Republic. The High Level Mission also indicated that the responses of the Sudanese government are inadequate. Their report stated that “Mechanisms of justice and accountability, where they exist, are under-resourced, politically compromised and ineffective. The region is heavily armed, further undercutting the rule of law, and meaningful disarmament and demobilization of the Janjaweed, other militias and rebel movements is yet to occur. Darfur suffers from longstanding economic marginalization and underdevelopment, and the conflict has resulted in further impoverishment.”
The indication that the national court system is inadequate is crucial, as the ICC can act only when the national court system is unable or unwilling to prosecute the person in question.
This first ICC arrest warrant against a ruling head of state is an historic moment in the development of world law.
This first ICC arrest warrant against a ruling head of state is an historic moment in the development of world law. There is a distinction between “international law” and “world law” that is made, at least by advocates of world citizenship and some international law professors such as the late Louis Sohn of Harvard Law School. International law is basically treaty law and deals with relations among states. World law is the law of the world community and thus deals with individuals. Most human rights standards, the ICC and the ad hoc courts dealing with former Yugoslavia, Rwanda, and Sierra Leone can be considered “world law” as they deal with individuals. The ICC deals with an individual not an entire state. However, the standards against which the individual is judged have often been set out in treaties and conventions such as the 1948 Convention on Genocide. Thus there is a close relationship between international law and world law, but it is intellectually useful to make the distinction between the two. World law is likely to grow.
The earlier heads of state to face an international court had already lost power prior to being arrested: Slobodan Milosevic of Serbia, Charles Taylor of Liberia, Radovan Karadzic of Republika Srpska, the Serbian unit of Bosnia-Hercegovina. Taylor and Karadzic have not yet been tried.
The fate of al-Bashir is uncertain. Only speculation is possible. He originally came to power in June 1989 as the ‘front man’ for the intellectual ideologue Hassan al-Turabi who became Speaker of the Parliament. Al-Turabi had the intellectual vision of a new Islamic-based society. Al-Bashir had no ideas but as a military man with an outgoing personality he fitted the image of a head of state. Al-Bashir and Al-Turabi parted ways in February 2001. Al-Bashir’s power base is narrow, mostly security people from the army and the police. My guess is that he will be eased out of power and go into exile in some ‘safe haven’ such as Arabia which was willing to take in Amin Dada of Uganda whose crimes were at least as evident.
In the meantime al-Bashir is still able to make life worse for the people of Sudan. His first move was to expel 13 foreign humanitarian NGOs and to close down one of the more active Sudanese relief agencies. Much of the United Nations aid to Darfur is administered through the international NGOs. With the withdrawal of the foreign NGOs both their own efforts and those of the UN agencies are at risk. The great majority of those working for the NGOs are local Sudanese. While the foreign staff has been expelled, the Sudanese staff is unemployed and unused.
The Sudanese government has said that it will replace foreign NGOs with Sudanese relief organizations. The government has not yet done so, and there are many displaced persons in camps organized by the international NGOs who are at risk, especially of illness. There are stocks of food available for about one month, but medical supplies need to be constantly renewed depending on need.
Moreover, it is difficult to replace foreign NGOs by Sudanese organizations without joint planning and a period of overlap. In a situation of civil war and fighting among Sudanese ethnic groups, there is a lack of trust. Some Sudanese relief organizations are considered by the displaced persons as ‘government agents’. International NGOs were considered more ‘neutral’ without tribal connections and loyalties.
There is a real danger that families displaced within Darfur will try to leave for Chad, where there are already some 200,000 Sudanese refugees. A new refugee flow will increase tensions between Chad and Sudan. As in the past, each state accuses the other of helping anti-government militias.
The international NGOs have been accused of “spying” for the ICC. The ICC has no spies. The information collected has come from UN sources, from NGOs, from interviews with displaced and refugees, from journalists and UN observers. The amount of information on the results of fighting in Darfur is massive and clear.
As I was the first NGO representative to the United Nations, Geneva, to speak out on Darfur in the UN Commission on Human Rights and its Sub-Commission in early 2004, I know that the evidence was available early and that the Sudanese army and security agencies were active agents. The President of a country is constitutionally responsible for the actions of the military and police under his authority. Thus Omar al-Bashir is responsible for the actions of the army and security agencies, even if the original initiatives came from the security group around him. In Sudan, the President becomes aware very fast of what is done in his name. There is no way that a major military offensive could be carried out in Darfur by the Army acting without orders from the President. The way the President determined policy and strategy in Darfur will have to be determined by a trial at the ICC — or by the Sudanese government records once al-Bashir is out of the way.
Some observers fear that the situation in Sudan could get worse without al-Bashir, but it is difficult to see how the situation can get worse. There is no obvious replacement for al-Bashir from within his own camp. However, there is a good deal of political talent in Sudan if the political structures were more open. There are probably a good number of people who see themselves in the president’s chair once al-Bashir is pushed out. Hopefully, there can be enough international pressure to speed his departure, even if his arrest and transfer to the ICC, I believe, is unlikely.
After the ICC arrest warrants, things are starting to fall into place. Hassan al-Turabi “for reasons of health” was released from jail in Port Sudan on March 9th and sent back by government plane to his home in the suburbs of Khartoum. Al-Turabi has been, since his break with al-Bashir in 2001, in-and-out of jail but most of the time under house arrest. In January 2009, after suggesting that al-Bashir was guilty of the crimes charged by the ICC, and should give himself up to the Court, al-Turabi was re-arrested and placed in a prison in Port Sudan far from his supporters, many still in government service in Khartoum. Al-Turabi has a good number of people influenced by his thinking in all sections of the Sudanese elite, including among the Darfur insurgencies. His release is a sign that a post-al-Bashir future is being considered, though not yet openly discussed.
Leaders of the African Union and the Arab League are watching the situation closely in a state of near shock. If one of their own can be held responsible for crimes against humanity by the ICC, does this not open a courtroom door for many of them?
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