Africa’s Position on the ICC
Yesterday’s meeting of the AU Peace and Security Council, held in New York, confirmed Africa’s push-back against the ICC. As feared by African human rights activists, one result of the indictment against President Omar al Bashir is that Africa has lost confidence in the ICC and is taking rapid steps to become a zone free of universal jurisdiction.
At the PSC meeting, Sudanese Vice President Ali Osman Taha made clear Khartoum’s position that an arrest warrant against Bashir would be a declaration of war against Sudan. He is increasing the stakes ahead of the General Assembly meeting in which the Sudanese are looking for enough support to table a motion opposing the ICC. (They are unlikely to get it.) Ali Osman said that the Sudan government was doing everything that the AU asked of it, including cooperating with UNAMID and taking steps to establish a judicial process under African supervision. (In accordance with PSC rules, Sudan was absent for the remainder of the debate.)
The positions taken at the PSC do not provide much solace to the supporters of the ICC and the advocates of universal jurisdiction. Not a single member state spoke in favor of the ICC indictment, though Nigeria paid lip service to the principle of no impunity and insisted that it was demanding a deferral only, not outright opposition to the Court. Algeria and Angola expressed satisfaction at not having ratified the Rome Statute, saying that they had heeded the warning of Rwandan President Paul Kagame that international justice followed double standards. (Kagame had observed that Rwandan genocidaires in France remain unpunished while European magistrates have issued arrest warrants against him.)
It is probably too early to expect African countries to withdraw from the ICC, but it is a safe bet that there will be no more accessions to the Rome Statute and a gradual freeze on existing cooperation.
Algeria noted with disappointment that Latin American countries had not joined the AU in opposing the ICC move. This indicates the difficulty that the supporters of an Article 16 deferral are facing in trying to get the necessary nine UN Security Council votes to pass a resolution for deferral, which would then challenge the U.S., U.K. and France to exercise a veto. However, no country that might have been expected to be more sympathetic to the ICC position spoke up, such as Senegal (not a PSC member but entitled to attend and speak). South Africa did not speak but is a prominent critic of the ICC arrest warrant.
The underlying logic of the African strategy was articulated: Africa believes that the stability of Sudan is too important to be jeopardized by an abrupt adoption of a regime change policy, and that justice should be pursued in the context of peace. The AU and its member states are unanimous about this and, having made their position clear to the UN and its member states, will hold them responsible for the consequences should their advice not be heeded.
The Chairperson of the AU Commission, Jean Ping, expressed Africa’s disappointment with the ICC. He noted that thirty African countries had ratified the Rome Statute, expecting that the ICC would aid them in the pursuit of justice. But rather than pursuing justice around the world””including in cases such as Columbia, Sri Lanka and Iraq””the ICC was focusing only on Africa and was undermining rather than assisting African efforts to solve its problems. Most importantly, Ping said that the UN had passed the responsibility for addressing the ICC issue in Sudan to the AU. He said that he had learned that the UN Secretary General had, before the July 14 ICC announcement, the opportunity to block the indictment but had said that the Court was wholly independent and it was none of his business.
AU leaders said that Sudan should continue to pursue peace, democracy and justice irrespective of whether the arrest warrant is issued or not. They pointed out that it is Africa that suffers if things go wrong. It is African soldiers who will die if Darfur goes up in flames.
It is evident that the AU leaders are angry at what they see as the UN’s abdication of its responsibility for balancing justice with peace and security. Africa’s leaders have given a clear vote of no confidence in the ICC and they are perilously close to no confidence in the UN as well.
The Bashir case will be the last case for the ICC. After Darfur, the UN Security Council will never again refer a case to the ICC. China will veto it. No African country will cooperate with the ICC. The ICC will never go to Iraq or Georgia or Chechnya because of the US and Russia. It will never go to Asia because the Asian countries will block it. Under Moreno-Ocampo it will not open a file on Columbia because it wants the support of the Latin American countries for the Sudan case. Moreno-Ocampo will not try any more cases while he is Prosecutor and his successor will have to try a completely different approach if he is to rebuild the credibility of the ICC.
The Communique of the PSC meeting on Monday is available here.
Another point underscores the double standard of the international community on universal jurisdiction. General Karenzi Kareke, the UNAMID Deputy Force Commander, was indicted by a Spanish magistrate earlier this year on charges that he had committed crimes against humanity while serving with the Rwandese Patriotic Army in DRC. As soon as the Rwandese Government made it clear that it would consider pulling out its forces from UNAMID if Gen. Karenzi was removed from his post, the UN backed down. Apparently the United States insisted that the arrest warrant be ignored in the interests of maintaining UNAMID’s presence. So he remains in post doing his job. In July, legal counsel at UN headquarters instructed UN staff to avoid meeting with President Bashir (who is not yet indicted) but they do business with Gen. Karenzi (who has been indicted) on a daily basis. There is one standard for Rwandese and another for Sudanese, or maybe one standard for those who are helpful to the Americans and the UN, and another for those who are unpopular in Washington DC and Turtle Bay. Look no further for proof that international arrest warrants are 100% political.
L. Moreno -Ocampo has taken the ICC into a cul de sac . A deferral will be a body blow to the embattled Court which badly needs some success after ten fruitless years. If the pretrial judges lean Ocamplo’s way the position will be -come more complicated.The Court is toothless. A long -drawn process will ensue in order to bully Sudan . Military occupation is out of the question for practical as well as political reasons . More sanctions will face resistance and not only from China and Russia .The prosecutor has ” swallowed a morsel which is too large for his throat” as the Sudanese proverb goes. He is bound to choke .
He, however,is not an individual . Something is wrong in an international order which allows one person (who has no advisors) to embarrass the great democracies which selected him for the job .The ICC’s loss of a case in the International Labour Organisation’s Administrative Tribunal on 9th July (mainly because of L.Moreno-Ocampo’s faulty judgement )should have been a warning signal .
Sudan’s best option is to carry on implementing the CPA and the DPA .Elections should be held. The referendum should be organised in 2011.
In our desert culture “The camel continues walking while the dog barks. ”
Sudan is the main partner in the project of Peace and democratisation which was brokered by the USA, Britain and our neighbours .If they abdicate their responsibility and hand over their collective leadership to one man; we should carry on because what is at stake is the future of our country .
Dr. Khalid
I realy liked the proverb “The camel continues walking while the dog barks. â€. limiting the ICC indictment and portraying it as a conflict between Luis Ocampo and the Sudanese government is an unjustice done to Darfurian victims. Western double-standards is admitted, but victims are waiting for a glimpse of light to end the atrocities committed to them around the country. I wonder sir, will the history forgive us if we went for a defferal on the basis that western powers are immune and will not be prosecuted by ICC. Untill when the camel will wreak havoc in our country without being bitten once by the barking dogs.And untill when are you going to hail insistence on destroying our country. Thanks are due to the dogs who are trying to do their best.
Regarding the Darfur crisis, I must say I’ve never seen anything get President al-Bashir’s and the international community’s attention like the threat of an ICC warrant has. That alone makes Prosecutor Luis Moreno Ocampo’s request for an indictment a positive step.