Can the International Criminal Court Prosecute President Bashir?
A famous sign on President Truman’s desk said “˜the buck stops here’. The principle is reflected in several dimensions of international criminal justice. Under article 28 of the Rome Statute of the International Criminal Court, leaders can be held responsible for the crimes committed by their subordinates, to the extent that they consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes. Under article 25, leaders can be held responsible for crimes committed by their subordinates to the extent that these were part of a plan or policy (“˜joint criminal enterprise’). The Prosecutor’s approach to choice of targets is to focus on “˜those who bear the greatest responsibility’.
There has been much debate in International Criminal Court circles about the Prosecutor’s choices in the other “˜situations’ within his purview, namely northern Uganda, the Democratic Republic of the Congo and the Central African Republic, as well as his decision not to proceed in other areas, such as Iraq. He seems to focus on rebel groups, usually steering clear of government officials and leaders. But the International Criminal Court was created to go after the likes of Charles Taylor, Augusto Pinochet and Slobodan Milosevic, not insurgent warlords who can equally well be tried within the courts of their own countries, if the authorities can catch them.
In his last presentation to the United Nations Security Council, Prosecutor Moreno Ocampo eloquently recalled that while a Government has the right and responsibility to maintain control of its territory, “˜there is no military justification for bombing schools, and no legal excuse for raping women’. He said such crimes have been “˜carefully prepared and efficiently implemented. They are not mistakes. They are not inter-tribal clashes. They are not cases of collateral damage. They are, quite simply, criminal acts against civilians “” unarmed civilians. Citizens from the Sudan are being deliberately attacked by Sudanese officials. In the words of Harun, the people of Darfur are the enemy. Their own State is attacking them.’
If he is right, then Moreno Ocampo should be prosecuting the head of the state that is attacking them. Ordinarily, President Bashir would benefit from the immunity of a head of state granted him by international law. But the International Court of Justice has already said that this does not apply in the case of the International Criminal Court. The Head of State of a country that has not joined the Court, which is the case for Sudan, might have a plausible argument of immunity, but not when the prosecution is triggered by the Security Council.
Of course, the Rome Statute ensures Bashir’s right to the presumption of innocence. The Rome Statute imposes obligations upon States to cooperate with the Court, but this is clearly limited to their own territory. States with projects and activities within Sudan would not be required to take any action, although they might choose to do so. Nor would any particular obligations be imposed upon the United Nations. But issuance of an arrest warrant against President Bashir would raise the temperature enormously, providing additional arguments and impetus to campaigners in other countries seeking to protect the vulnerable in Sudan.
The real pressure can only come from the Security Council. It launched the process, with Resolution 1593. Now, the Prosecutor and the Court are at the mercy of the Council, because its cooperation is required if any arrest warrant is to stand a chance of being successfully enforced.
The Security Council is a political, not a judicial, body. That is why the “˜like minded states’ and international civil society, which earned so much of the credit for the form that the International Criminal Court eventually took, insisted upon a Court with an independent prosecutor, rather than one subservient to the Security Council. Security Council referral of the Darfur situation was a mixed blessing. It came with strings attached by the Americans. If the Security Council is not prepared to take action, with a further resolution directed at bringing those already charged and – should he be accused – President Bashir to The Hague, then the arrest warrants will be little more than hollow gestures. Hopefully, then, should the Prosecutor intend to charge President Bashir with genocide, crimes against humanity or war crimes, he will already have tested the political waters in New York to make sure there is at least a chance of action.
The Prosecutor has been going through a tough time recently. His first trial, scheduled to begin in late June, has been cancelled by the Trial Chamber because of irregularities in gathering evidence. His first investigation, in Uganda, is totally stalled, and increasingly the Court looks to be the victim of manipulation by President Museveni. A more robust judicial intervention in Sudan from the Court has the potential to restore its flagging credibility. But biting off a head of state is a big piece to chew. There is much opportunity here for the Court, but also danger.
William Schabas is Director of the Irish Centre for Human Rights at the National University of Ireland, Galway.
Ocampo is indeed in the right track. Turmoil may be triggered by the agents the NSF primed in the most cancerous way throughout its rule. Still holding the indictment of Beshir or high officials would not stop turmoil in its sinister programs. Sudan is already experiencing roguery it never knew, and giving taste of much of it to neighbours and the world. International law is infant, needing jurisdiction that requires authority of international sovereignity, a difficult issue already in scrutiny for international and UN law reforms. But need discloses methods of delegation of power. The globe is getting more interrelated with the speed, precision and volume of information, bringing international security to the brink of severe friction. No longer actions of one sovereign body are solely the concern and authority of that sovereign body, and international codes of ethics have to have teeth, by delegation of rights, otherwise it would end up to grow its own teeth by subjugation by able powers who would no longer stand with tied hands to the immense damage caused by rogues. The ICC has just started to address this very issue, and should sturdily go on, while level headed people of the world, scholars and activists, have to man the spin machine in support. The choice of not recognising the ICC or having an exemption from its laws would die out in due time when its credibility is perceived by the international community. Meanwhile giving up or allowing sliproads serves no purpose than more hurdles for the ICC to overcome in regaining approval, and no one benefits from this except short term beneficiaries, the rogues of today
I think the challinging scenerio that the ICC found itself in is indicting a sitting head of state, this is when we look largely from medieval moral perspective. The challenge is whether ICC will arrest Bashir and take him to Hague or not and when is what Darfur ctitizens are waiting for.
Because as far as justice is concerned the issue of morality is supposed to take secondary position. Indeed the international community is at the crossroad and find lots of difficulties deciding which way to go, but without remorse ICC prosecutor provided that direction. For our planet to be a better place to live in; all criminals must face the law, iam happy, that is what Ocampo is doing right now.
If we argue that ICC was a lame duck and by indicting Bashir is trying to regain its credibility, we are looking myopically at the entire political spectrum, Sudanese like any other human beings in the world are yeaning for justice and if the world can’t provide that who else can? Those who argue for deferring Bashir’s indictment to give room for Darfur peace Talks are looking only at one side of the coin; for some of us the world need not to bend low for Bashir and deny Darfurians justice that they have been keenly looking/waiting for.
All the concerns and possibilities raised by other contributors regarding Bashir’s indictment is in place; however; justice could not be held hostage because the world is indicting a sitting head of state. In my view the world have to be prepared to handle the aftermath of issuance of arrest warrant to El-Bashir? We need to prepare ourselves as international community and ensure that Bashir faces the law and no more civilian cusaulties.
I belief whether Bashir’s indictment is deferred or not the sinnister motive of Bashir’s plan of tribal cleansing, genocide, murder and torture in Darfur will continue, so why should the world allow such a person to carry out such plan with impunity, and do nothing to stop him.
The Head of State of a country that has not joined the Court, which is the case for Sudan, might have a plausible argument of immunity, but not when the prosecution is triggered by the Security Council.
Ocampo is indeed in the right track. Turmoil may be triggered by the agents the NSF primed in the most cancerous way throughout its rule. Still holding the indictment of Beshir or high officials would not stop turmoil in its sinister programs. Sudan is already experiencing roguery it never knew, and giving taste of much of it to neighbours and the world. International law is infant, needing jurisdiction that requires authority of international sovereignity, a difficult issue already in scrutiny for international and UN law reforms. But need discloses methods of delegation of power. The globe is getting more interrelated with the speed, precision and volume of information, bringing international security to the brink of severe friction. No longer actions of one sovereign body are solely the concern and authority of that sovereign body, and international codes of ethics have to have teeth, by delegation of rights, otherwise it would end up to grow its own teeth by subjugation by able powers who would no longer stand with tied hands to the immense damage caused by rogues. The ICC has just started to address this very issue, and should sturdily go on, while level headed people of the world, scholars and activists, have to man the spin machine in support. The choice of not recognising the ICC or having an exemption from its laws would die out in due time when its credibility is perceived by the international community. Meanwhile giving up or allowing sliproads serves no purpose than more hurdles for the ICC to overcome in regaining approval, and no one benefits from this except short term beneficiaries, the rogues of today
The politics of the ICC indictments gets ever more complex http://www.royalafricansociety.org/component/content/818.html?view=article
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