There are three new groundbreaking precedents contained in this act. First, this is the first time a sitting Head of State has been summoned by the ICC, although the specialised International Criminal Tribunal for Yugoslavia (ICTY) tried Slobodan Milosevic and the Special Court for Sierra Leone’s War Crimes is currently prosecuting Charles Taylor for genocide, war crimes and crimes against humanity.
Second, it is also the first instance where the UN Security Council (SC), acting under Chapter VII of the UN Charter, initiated criminal proceedings against an individual by way of a referral to the ICC. The referral also extends the arm of the ICC, as all UN members are compelled to hand over President Bashir were he to be in their territories.
Lastly, the SC Resolution requires the Sudanese government to co-operate fully with, and provide assistance to, the ICC. Despite this, the Sudanese government has already expelled at least 10 foreign aid agencies in response to the warrant.
The referral or Resolution 1593, as it is commonly known, adopted by the SC on 31 March 2005, empowered the Prosecutor of the ICC to investigate war crimes and crimes against humanity committed in Darfur. Resolution 1593 was not passed unanimously by the 15 member SC-Algeria, Brazil, China and the US abstained from the vote.
What are the legal measures the ICC can take against President Bashir? What is its impact likely to be? And what challenges does Africa face in dealing with the matter.
The relevant legal framework other than the UN Charter is the Rome Statute entered into on 1 July 2002 which established the ICC and applies to all citizens of member states, regardless of their capacity/position. Significantly, Sudan is not a member state of the ICC, nor has it ratified the Rome Statute. Yet the ICC has jurisdiction to prosecute President Bashir by virtue of Resolution 1593. Thus, a State does not have to ratify the Rome Statute to fall under the penalising powers of the ICC when proceedings are triggered before it by an SC referral. This may make a number of African leaders a little uneasy. Several of them have refrained from ratifying the Rome Statute, yet could now potentially be brought under its jurisdiction.
However, the positive power of the SC to complement the ICC by way of a referral may be diluted by its power of deferral. Article 16 of the Rome Statute provides that the SC may defer the investigation or prosecution by the ICC for a year and keep renewing the deferral. This has led Professor David Morrison to observe that ‘the [SC] will look a bit foolish doing that, since it referred the situation in Darfur to the ICC in the first place.’ Nonetheless a repeated and indefinite deferral of the prosecution is a theoretical possibility.
Does this mean that the judicial mandate of the ICC is at the mercy of the political decisions of the SC? And does the SC have the power to paralyse the ICC indefinitely?
Such questions are critical as far as the case against President Bashir is concerned, considering the anticipated opposition from some of the permanent members of the SC. China and Russia have already expressed disapproval of the warrant, while the US is now choosing not to abstain but rather to advocate the ‘firm political oversight’ of the SC over the ICC.
Article 16 of the Rome Statute is the product of a ‘turbulent drafting history’. A veto by the SC was initially proposed, only to be furiously opposed. Finally, the compromise position reached was a deferral for a period of twelve months of ‘investigations’ or ‘prosecution’ rather than all proceedings. As eminent international criminal law jurists Luigi Condorelli and Santiago Vilallalpando have observed, the purpose behind the provision is co-ordination of the prosecution of international crimes by the ICC with other measures undertaken by the SC for the fulfillment of its purposes.
Moreover, a SC deferral cannot be on totally arbitrary grounds – the ICC has the power to review the legality of the deferral without overstepping its mandate and judging its appropriateness.
This is an issue that had come up before the ICTY and the test of legality formulated is to discern whether a SC Resolution falls within the objectives enshrined in the UN Charter and whether the same may further the ends of international law. The ICC is not allowed to decide on the political soundness of the SC’s decisions but should not at the same time refrain from assessing their legality. Further, the Rome Statute also provides that if a state refuses to co-operate with the ICC, then the matter can be referred back to the SC; the reaction of the SC to such a situation remains uncertain.
Nonetheless, this judgment raises a range of difficult political questions. Human Rights Watch has asked provocatively: ‘Why are all the ICC prosecutor’s cases in Africa? Is the West trying to impose its own justice on Africa?’ In response, the ICC has pointed out that the other three cases that have come before it have been by way of direct referrals from the heads of Uganda, the Democratic Republic of Congo and the Central African Republic. The Prosecutor of the ICC is also conducting a preliminary analysis of situations in Afghanistan, Georgia, Colombia and Palestine.
The African Union, possibly acting out of self-interest, has labelled the warrant ‘regrettable’, and has urged the ICC to suspend it. Similarly, the South African minister of foreign affairs, Nkosazana Dlamini-Zuma, stated in February 2009 that a delay in the indictment is preferable, in line with the Sudanese official view that an indictment would derail the peace process in Sudan.
However, a study published by the Institute for Security Studies observes that ‘the reasons for recent African opposition to the ICC reflect an outdated and defensive view of sovereignty as a trump to human rights and justice.’ The ICC, in fact, does recognise sovereignty but subjects it to certain qualifiers. The balancing of state sovereignty and intervention by an international organisation is the principle of ‘complementarity’ in international law, found in the Rome Statute as well, where the ICC cannot step in when a state is carrying on its own investigation (It may be noted that in case of an SC referral, it is debatable whether complementarily may be argued by the accused before the ICC). However, ‘unwillingness or inability’ to prosecute is not considered to be a valid exercise of sovereign functions.
While it could be argued that Sudan has declared an amnesty on President Bashir, amnesty in itself is a contentious principle in international law. A distinction may be made here between the amnesty granted by the Truth and Reconciliation Commission in South Africa and the amnesty assumed by Chile in relation to General Augusto Pinochet. While the former amnesty was considered permissible, the latter was not due to the unilateral assessment of amnesty. It remains to be seen if there is any form of permissible amnesty issued in favour of President Bashir by any other organisation. But clearly, neither amnesty nor sovereignty are blanket alternatives to reasonable prosecution.
Moreover, resolution 1593 advances a much more urgent discussion within Africa on human rights abuses by heads of state. The resolution ‘invites the Court [the ICC] and the AU to discuss practical arrangements that will facilitate the work of the Prosecutor and of the Court, including the possibility of conducting proceedings in the region, which would contribute to regional efforts in the fight against impunity’, while also recognising truth and reconciliation commissions ‘in order to complement judicial processes’.
The need for the AU’s active involvement is all the more urgent after the expulsion of humanitarian aid agencies from Sudan by the Bashir government. Medecins Sans Frontieres (MSF), for instance, who had been providing medical aid to Darfur victims since 2003, was suddenly expelled from Sudan just after the warrant was issued. In their estimate, around 450,000 patients are without health care and heavily reliant on international NGOs. The fact that the Government of Sudan has shelved plans to take over basic services currently provided by international non-governmental organisations and United Nations agencies, adds to citizen suffering. Thus, there are a number of challenges that face concerned regional parties and stakeholders-primarily that of balancing justified prosecution and improving the conditions of the citizens of Darfur.
Previous attempts to address terra firma as well as institutional problems in Darfur have failed: the Darfur Peace Agreement has not been honoured, the United Nations African Union Mission in Darfur (UNAMID) has not been successful in resolving the situation, on the contrary, several UNAMID officials have been killed. Numerous provisions of the Organisation of African Unity Constitutive Act, 2000 have also been flouted-such as the protection of the rule of law; human rights; and the condemnation of impunity.
Ironically, the common concern among African countries seems to be that the ICC’s warrant undermines the continent’s efforts to solve its problems. As all regional efforts in the continent to solve the situation so far have fallen short, it is imperative to look to newer alternative and more aggressive arrangements rather than, as Desmond Tutu puts it, ‘work to subvert it [the warrant]’.
Indeed there are three steps that the AU and the Arab League should adopt immediately. To begin with, the AU should compel Sudan to revoke the expulsion of international aid agencies and assist in the development and implementation of a state policy to provide basic services. Second, the Arab League and any African states in favour of a deferral/suspension of a warrant should resort to conditionality: in the event the Government of Sudan does not actively take immediate remedial measures, they would withhold their support for a deferral. Finally, as indicated earlier, impunity cannot be condoned, thus in conformity with Resolution 1593, a regional body must actively conduct proceedings against war crimes and crimes against humanity within the region.