ICC lost leverage in the Darfur case
By: Wasil Ali*
It is very hard to miss the fact that the International Criminal Court (ICC) and specifically the Office of the Prosecutor, is getting nervous at the shrinking prospects of arresting the Darfur war crimes suspects. The world has been paying less attention to the calls by the ICC to arrest the Darfur suspects in the same way they did with calls to arrest the Uganda Lord Resistance Army (LRA) leaders indicted. However specifically in the case of Darfur the ICC is to blame for this awkward situation.
Despite the fact that the UN Security Council (UNSC) resolution 1593 was referred to the ICC under Chapter VII, the office of the Prosecutor at the ICC Luis Moreno-Ocampo, acted as if the Sudanese government had a choice whether to cooperate or not. The result was endless requests by the Office of the Prosecutor for interviewing Sudanese officials that went unheeded. Yet the prosecutor told the UNSC in his semi-annual reports that Khartoum was fully cooperating. The fact of the matter is that in the two years of the investigation, the Sudanese government allowed the ICC to review the judicial proceedings with regard to the Darfur case and interview two officials only.
By telling the UNSC that Sudan was cooperating when it was actually not, the ICC lost a golden opportunity to allow its work to proceed at a faster pace. The UNSC at the time was politically willing to back the ICC in its investigations and force Sudan to cooperate fully. The outgoing British Envoy at the UN Sir Emyr Jones Parry made that clear during informal remarks to reporters following the prosecutor’s second report to the UNSC.
Even in his latest report to the UNSC in June, the prosecutor’s language requesting their help to arrest the Darfur suspects was extremely weak. Ocampo said in his report that his office “relies on the Security Council……. to call on the Sudan to arrest and surrender Ahmad Harun and Ali Kushayb to the International Criminal Court”. This was despite Ocampo’s confirmation in other parts of the report that Sudan has refused to work with him. The outcome was simple; the UNSC did not bring up the issue of the ICC in their visit to Khartoum during the month of June.
Ocampo consistently said he respected the government of Sudan. He said that he is investigating individuals and not the government. As such he avoided criticizing Khartoum in public even after the arrest warrants were issued. Khartoum’s response to the decision by the ICC judges in the Darfur case was swift. Sudanese officials launched a non-stop media campaign against Ocampo that put his credibility in question. I believe at that it was at that point Ocampo started make stronger statements against Khartoum. However I think this hardened stance was “trop peu, trop tard” [too little, too late].
The slow pace of the ICC has also been a poison pill to the Darfur case. The investigation took almost two years partly because the prosecutor decided not to go into Darfur and to look for witnesses outside Sudan. The judges took two months to take a decision on application by the prosecutor against Harun and Kushayb. This is the same amount of time the judges took before they issued arrest warrants against five suspects in the case of Uganda and not just two. Then it took the ICC registry another month before they transmitted the arrest warrants to Sudan and other countries.
The issue of getting Sudan’s approval to deploying peacekeepers to Darfur overshadowed the ICC arrest warrants. The latest UNSC resolution 1769 authorizing peacekeepers to Darfur made no mention of resolution 1593 referring the situation to the ICC. Perhaps this is a subtle indication that the UNSC is no longer interested in holding the Darfur war criminals accountable. The UNSC is definitely deserves a big share of the blame for “not taking itself seriously” as the former UN representative to Sudan Jan Pronk put it.
Ocampo is now discreetly trying to rally world support to execute the arrest warrants. He has been paying visits to the EU, Arab League and UNSC permanent representatives. However given the current political climate that views the ICC as an obstacle to peace in Darfur, it is not likely that these visits will yield any results besides moral support. The Arab League, visited twice by Ocampo this year, will definitely not be of any help to the ICC. The Arab league has been supportive of Khartoum on the Darfur crisis all the way.
Nevertheless the abovementioned facts do not mean that Harun and Kushayb have escaped justice. I personally believe that sooner or later they will either be captured or killed by the Sudanese government. Even though Harun has been making public statements saying he did not care about the ICC arrest warrants, he definitely knows that it will not just simply disappear. As a result he has not left Sudan since the indictments by the ICC. However neither the UNSC nor Sudan will be of any help in nabbing those suspects and extraditing them to the ICC.
* The author is a Sudan Tribune journalist, can be reached at [email protected]