Sadia al Imam writes

The allocation of responsibility for issues of justice, peace and democracy between the OTP and the UN Security Council is an important one. The Bashir case shows that this allocation needs more attention.

The Prosecutor is required to weigh the interests of justice. But he operates under a strong presumption that prosecution is in the interests of justice. He has only a negative duty not to proceed if the interests of justice clearly dictate not prosecuting (at this particular moment). A decision not to proceed with a prosecution, on the grounds of the interests of justice, would be a highly exceptional occurrence.

The Rome Statute gives little guidance on what criteria the OTP should apply to determine these highly exceptional circumstances. But the best interpretation of the “˜interests of justice’ is narrow: see Article 53(2)(c) which indicates a focus on the individual circumstances of the victims and perpetrator. Among the circumstances to be taken into consideration it lists, “˜the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime.’ No reference is made to wider political consequences of prosecution. Indeed the OTP should not be required to pass judgements on political issues beyond its competence.

The Prosecutor is also obliged to consider the interests of the victims. Once again the presumption is that prosecution is in the victims’ interest, though it is easier to foresee instances in which the Prosecutor might decide to make an exception, in the case of individual victims. When dealing with an entire protected group, as with genocide charges, it is impossible to see how the Prosecutor conclude that its interests would not be served by prosecution.

The Rome Statute makes no reference to the interests of peace and security (nor indeed to democracy). These are the domain of the UN Security Council, which has the authority to refer cases to the ICC and to suspend them under Article 16. The OTP is not properly equipped to make judgements about the prospects for peace and the wider implications of a prosecution for a country and its political future. Indeed it would be very hard to see how it could play that role.

In practice, there seems to be something of a mess here. The UN Security Council referred the Darfur case to the ICC, indicating at the outset this decision was in the pursuit of peace and security. Since then, the Secretary General has made his “˜hands off’ position quite clear. Meanwhile, the Prosecutor has ventured out of his role as Prosecutor into actively lobbying the Security Council against an Article 16 deferral. He has taken a “˜hands on’ position regarding the politics of the Application.

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Dear Sadia,

I think you have it spot on. The ICC’s internal policy, adopted in 2006, defines the Prosecutor’s responsibilities with regard to the interests of justice in a narrow manner as a negative duty. This is fine. As you write, it is hard to see how it could be otherwise given the primary mandate of OTP to prosecute. But this is workable only if certain conditions are met.

The first condition is that there is some clarity on those “˜highly exceptional’ circumstances in which a prosecution is not in the interests of justice. Individual factors such as the age, state of health etc., of the accused are one set of considerations.

Another consideration is whether a prosecution might threaten the life of the nation, and thereby bring about a situation in which serious additional crimes are perpetrated. Let me suggest one simple criterion for making a prima facie case that a prosecution might fall into this category: the prosecution of a sitting head of state in a country with high potential for renewed armed conflict. It would be hard to set a higher threshold than this. If the Bashir case does not fall within such a criterion, it is hard to see what purpose is served by the “˜interests of justice’ requirement.

The second condition is that the Prosecutor remains within his role. He may be able to justify his decision to prosecute, based on his mandate, the reading of the interests of justice, and his assessment of the “˜interests of justice.’ But his role should stop there. By applying for an arrest warrant against a head of state, he has already made his conclusions on the “˜interests of justice’ perfectly clear. If the Prosecutor then takes it upon himself to campaign against an Article 16 deferral, he is drawing far-reaching positive political conclusions about the interests of justice. In the early days of the LRA case he also spoke about his power to suspend his activities if they were not in the interests of justice. Last week at Yale University he said, “Persons indicted by the Court should be arrested. They cannot be partners at the negotiation table.” He cannot have it both ways.

Assuming that (a) it is a justifiable position for the OTP to take the line that there are no circumstances under which it can make a judgement that prosecution is not in the interests of justice, and (b) some prosecutions might indeed threaten the life of the nation and risk new violations, and (c) ignoring the Prosecutor’s ventures into politics, the question arises, who has the ultimate duty to ensure that a prosecution does not proceed if it might threaten the life of a nation? It is, I assume, the UN Security Council. The third requirement is that the UN Security Council plays an oversight role over such prosecutions that might meet the criterion outlined. As argued by David Scheffer (quoted in the posting on Sept 1), circumstances such as Sudan today were not foreseen””or not adequately catered for””in the Rome Statute. However, Resolution 1593 explicitly recalls the Article 16 option in its preamble, notes that ‘the situation in Sudan continues to constitute a threat to international peace and security,’ and concludes that the Council ‘decides to remain seized of the matter.’

The safeguards within the system have proven too weak. The passivity of the UN Secretary General and the divisions within the UN Security Council have created a vacuum which the Prosecutor is filling with his activism. The interests of Sudan as a nation are not being safeguarded within this system.

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Dr. El-tahir El-faki (a senior member of JEM) writes:

A prosecution of President Omar al Bashir is in the interests of the Sudanese people, and deferring it will only serve the purposes of the NCP remaining in power. This is for the following reasons.

First, rumors of the threat to the CPA arise from the NCP’s own leadership. It is in their interests to frighten the Sudanese people and the international community into believing the worst. But in reality, maintaining the CPA is in the interests of the NCP, because the CPA gave it a new lease of life and is the basis for its legitimacy. Within the government there are smart individuals who know this, and also know that it is not in their interests to defy the will of the international community.

Second, the victims of this regime, not only in Darfur but all over the country, have the right to see that justice is done. That is a basic right and no-one is entitled to demand on their behalf that they forfeit that right. These people are not benefitting from the status quo: they are struggling to survive in their daily lives, while they see Bashir and the other NCP leaders living lavish lifestyles, without a hint of apology for the miseries they have inflicted on the Sudanese people.

Third, justice is now part of the international order, and any country must adopt human rights values if it is to be part of the international community. Those standards should apply everywhere. The Sudanese people twice before surprised the world by overthrowing military dictators. Western nations should stick to their core values of democracy and human rights and thereby encourage the Sudanese people to make the correct decision for how to deal with a tyrant, if they want to be part of the international community.

Fourth, the real threat to the CPA stems from the NCP itself. It will manipulate the elections. It will resist the right of self-determination for southern Sudanese. It will refuse any real redistribution of power let alone transfer of power to another party. An Article 16 deferral will not change its calculations in any way, it will simply give it more time to organize its strategy.

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Dear Tahir,

Article 16 deferral is not a good solution to the problem. But it is the least bad option.

One of the reasons that I call for an unconditional deferral is that justice is a right. It is not a conditional right: it is a right, period. To link justice to the achievement of other foreign policy goals of UN Security Council members would, I believe, be more of a setback to the principle of justice, than simply to put the issue aside for a while.

Very few people, including the ICC Prosecutor, expect that an arrest warrant will be executed any time soon. President Bashir may be a prisoner in the Republican Palace, but that is not the kind of prison that the Darfurian victims would like to see him inhabit. How will justice be done and the victims of the Darfur conflict””and the people of Sudan in general””be satisfied with this? Very quickly they will become disenchanted with an international justice that fails to deliver. This is what happened with the Joseph Kony case””Ugandans celebrated the arrest warrant but then became fed up when it could not be implemented, and bitter when it actually became an obstacle to solving their problems.

I wish there were a realistic prospect of a popular uprising as in April 1985. I don’t believe it is likely. It is of course possible to imagine all manner of positive outcomes from the ICC arrest warrant. But it is equally possible to imagine all manner of negative ones, including for example some elements among the armed opposition taking it as a green light for taking military action. My point is that the risks of things going wrong are sufficiently grave to warrant stopping this gamble from proceeding.

What is the realistic alternative to a deferral? What we can expect is that the UN Security Council members, and other leading foreign governments, find a way of ignoring the arrest warrant. They all have other interests in Sudan and they are all risk-averse. All of them will be happy if there is a peaceful and orderly resolution of the issue, with President Bashir being yielded. But none of them are ready to gamble with the possibility, however small, of a disaster in order to make this happen. So there will be a de facto Article 16. A sort of institutionalized hypocrisy. This is not, I think, any better than recognizing the reality and passing the appropriate resolution.

You argue that the NCP will continue with CPA implementation because it is in its interests to do so. Up to a point that is correct. But this is a pro-forma CPA, stripped of any real spirit of democratization. You also argue that the CPA will manipulate the political outcomes to its advantage, come what may. That is also correct, and in the nature of political parties. What the ICC arrest warrant does is change the calculus of manipulation, away from the longer-term objective of the NCP surviving as a significant political force within a democratizing system, to the NCP holding onto power in the short term, come what may, because the consequences of letting go are so terrible.

Your points on this reflect the odd schizophrenia among many Sudanese intellectuals and opposition politicians. In general, many are in a state of shock and awe at the Islamists””at their audacity and organization and their capacity for managing Sudanese and international politics to be able to survive. This translates into fatalism: a belief that “˜these people will always get the better of us.’ Yet at the same time there is a curious faith in the CPA with its promise of democracy. What I am looking for””and not finding””is a political strategy for solving Sudan’s political problems. The biggest challenge for Sudanese democrats is to out-think their opponents. That is not happening. Putting faith in international salvation is never a strategy and is always a mistake””and with all my many criticisms of JEM, on one point I will always agree with your analysis, which is that Sudan needs a Sudanese solution.

My final point is that Sudan needs its Sudanese solution soon””or at least needs to work on it now. When we refer to CPA implementation, this is not akin to sticking to a national constitution. It is more than a formula, it is a common project. It is also preparing for two pivotal and related events which are due very soon. If the right preparations are not made this year, the CPA is heading for a crisis. I don’t believe that Sudanese can afford to spend 2009 focusing on anything other than finding a consensus on the future of the nation.