Reaction to ICC indictment of Sudan president: Hypocrisy and ignorance prevails

By Wasil Ali*

July 28, 2008 — I must admit that I found it hard to overcome the feeling of disgust as I watched people talk on TV or write, either in defense of the Sudanese president Omar Hassan Al-Bashir or attacking the International Criminal Court (ICC) and its prosecutor Luis Moreno-Ocampo. In my opinion this was the moment of truth since it showed the true colors of many people particularly the Arabs, Africans and Sudanese themselves in terms of morality and competence. Most surely there are those who were genuinely concerned about the implications of the ICC move who I respect but unfortunately the vast majority of those who spoke on the issue were hypocritical to say the least, in their arguments they made.

The Arab “brothers” on July 14th seem to have come to life after a long hibernation to realize that there is a crisis in Darfur and there is an ICC. Yet without doing their homework their reaction to Al-Bashir indictment was hysterical and demagogical. An Arab writer, who also describes himself as a human right activist, by the name of Mahmood Al-Mubarak wrote an article in the daily Al-Hayat on July 14th criticizing Ocampo and the court calling it a tool in the hands of the US. But the most shocking part was that he expressed surprise why the ICC prosecutor would worry about “a trivial case like Darfur”.

Mohamed Barakat the editor in chief of the Egyptian daily Al-Akhbar apparently in a rush to join the masses in its condemnation of the ICC spoke on July 16th about Ocampo as the “Belgian” prosecutor in his entire article. It goes without saying that the ICC’s prosecutor is from Argentina.

But the worst part of all was when the so called Arab legal experts from all over the Arab world united in asserting that the ICC has no jurisdiction in Darfur and that the Sudanese president enjoys immunity from prosecution. They have made it sound almost as if the ICC has landed out of nowhere to investigate the Darfur crimes. None of those “legal experts” have even mentioned the UN Security Council (UNSC) resolution 1593 which authorized the ICC to investigate in Darfur. They contended that Sudan is not party to the Rome Statue without even the slightest reference of Article 13(b) Rome Statue which states that a case may be “referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations”. The interesting part is that none of Sudan’s allies in the UNSC such as China, Russia, Libya and South Africa have even brought up this argument.

The legal circus in Sudan doesn’t stop there. Today one of the pro-government lawyers named Badria Sulieman said that the government will request the opinion of the International Court of Justice (ICJ) on the authority of the UNSC to refer cases to the ICC for non-state parties.

So what if the UNSC had alternatively decided in March 31, 2005 to establish a special tribunal for Darfur war crimes similar to Rwanda and Yugoslavia? What would have been the opinion of these Arab lawyers? That the UNSC has no authority to do so? Chapter VII of the UN charter under which the Darfur case was referred to the ICC, makes it mandatory to all countries to comply with its resolution. Therefore any talk about the UNSC or ICC decisions being non-binding to Sudan is a purely political claim.

One of the clichés that was repeated meaninglessly by Khartoum is that Sudanese courts “are willing and able to try Darfur suspects”. They use the concept of complementarity embedded in the Rome Statue which makes the ICC a court of last resort in case national courts do not conduct national proceedings relating to the same crimes being investigated by the world court in The Hague. But according to the ICC statue Khartoum must prosecute the same suspects named by the ICC for the same crimes.

But for Sudan any trial in Darfur is a matter of a show to the world since they have consistently denied any war crimes commission in the western region. By prosecuting a few lieutenants or members of their militias for individual crimes is sufficient to prove their seriousness in the eyes of the Sudanese government. Moreover these proceedings have been conducted in the dark since they banned publishing anything on them last year.

Also let us not forget that one of the suspects wanted by the ICC Ali Kushayb was supposedly in custody for Darfur violations. Apparently he was released afterwards but the former Justice Minister Ali Al-Mardi kept denying all the time that he was released until he left office. Sudanese officials later confirmed his release saying there was no evidence against him. This simply proves is that Sudan is not genuine about conducting trials for Darfur war crimes. This story clearly demonstrates what amounts to a cover-up made to protect Darfur war criminals.

Then we move to the issue of immunity contended by Sudanese and Arab lawyers alike. The Sudanese ones have naively leaned towards using the constitution as a basis to dismiss Al-Bashir’s indictment. They fell short of saying that national laws supersede international ones as well as UNSC resolutions.

Others lawyers were more sophisticated and they used a ruling by the International Court of Justice (ICJ) of Belgium vs. Congo in 2002. The Democratic Republic of the Congo (DRC) instituted proceedings before the ICJ against Belgium concerning an international arrest warrant issued on April 11, 2000 by a Brussels court against Yerodia Ndombasi who was the Congolese acting Minister for Foreign Affairs. The ICJ concluded that Ndombasi enjoys immunity from criminal jurisdiction in national courts. The court further stated that the arrest warrant “constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the Congo”.

However what the Arab and Sudanese lawyers failed to mention either intentionally or out of ignorance is section 61 of the ICJ’s decision rendered in the case. The ICJ judges made it clear that the DRC official “may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction”. One example of such a court as quoted in the decision was the “future International Criminal Court created by the 1998 Rome Convention. The latter’s Statute expressly provides, in Article 27, paragraph 2, that “[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”. Therefore Al-Bashir has no immunity before the ICC.

On the political front Sudanese and Arab journalists have accused the ICC of collaborating closely with the US administration. They claimed that the US State Department was the first to disclose Ocampo’s intention to seek an arrest warrant against Al-Bashir. It was like a lie that became a truth only by wide circulation. They could have simply traced that it was UN officials and diplomats speaking to the Washington Post on July 11th who confirmed Al-Bashir’s indictment. On the same day the New York Times revealed that the ICC’s prosecutor “privately informed Security Council members that he would ask the judges on Monday at the court in The Hague to issue an arrest warrant for Sudan’s president”.

Nowhere in the July 11th press briefing by the US State Department Sean McCormack does he make any sort of confirmation on ICC intention with regards to Al-Bashir. When a reporter asked McCormack to confirm he responded by saying that “it’s not my intention to confirm anything of the sort. As a matter of fact, the ICC – the United States doesn’t have anything to do with the ICC. So certainly, we wouldn’t be the ones to be confirming anything”.

African and Arab countries were quick to warn of the devastating impact of Al-Bashir’s indictment saying it would lead to a power vacuum and a country collapse. Some went as far as condemning the “malicious” move by the ICC prosecutor and refuting his accusations against the Sudanese president saying it is “purely political” and part of a Western conspiracy against Sudan. The natural question arises. What if Al-Bashir died? Does he not have Vice presidents or is the country’s destiny tied to the survival of Al-Bashir? Should Sudan be allowed to renege on the agreements it signed internally and externally simply because the ICC charged its president?

On the other hand if the prosecutor’s case is baseless the judges will simply reject it unless of course someone wants to question their credibility as well. The prime example of the ICC’s impartiality is the case of the Congolese militia leader Thomas Lubanaga. The judges decided to suspend the trial saying that evidence withheld from the defense by the prosecution will not guarantee a fair trial. This was an impressive ruling since it is unfavorable to the ICC prosecutor but shows that the rule of the law is what governs the court. The funny thing is that some in the Arab media have used Lubanaga’s ruling as an argument against the ICC.

Inside Sudan no view in support of the extraditing Al-Bashir ICC has been allowed. None of the Sudanese politicians who called for internal solidarity put any effort to say that war crimes on a wide scale have been committed in Darfur deserving punishment. Some who have been supporters of the ICC’s work in Darfur turned to rally behind Al-Bashir. A good example is the former Sudanese Prime Minister Al-Sadiq Al-Mahdi and leader of the opposition Umma Party who told the BBC that “targeting any person in this country, especially its leader, is targeting Sudan, its people, stability, peace and security – and every Sudanese must understand this matter”.

A year ago Al-Mahdi told the daily Ukaz newspaper published in Saudi Arabia that he visited Darfur in 2004 with an Umma party delegation. The former Prime Minister said “war crimes against humanity on a huge scale were committed that cannot be dropped or forgotten and there must be accountability”. He stressed that the tribes most affected are the Fur, Masalit and Zaghawa which matches what the ICC prosecutor said in his filing that these groups have been systematically targeted. Al-Mahdi also recounted the burned villages he saw that were bombed by Sudanese the air force and spoke to refugees who told him their stories of “killings, looting, burning villages and rape”. He also said that the ICC is “independent and its formation is more impartial and less prone to pressure by world powers”. Today Al-Mahdi abandons the Darfuris who always voted for his party in any elections and sides with the people he once accused of war crimes.

The African Union and its members who form the majority of the ICC members criticized the court and some like South Africa questioned who will arrest Al-Bashir, effectively abandoning their obligations under the Rome Statue they ratified. None of the African countries spoke of the tragedy in Darfur or the plight of Darfuris even though they are the people impacted by the conflict. No one considered their opinion on the issue of justice. It is simply as if they do not exist and that it is the government view which matters. They spoke of “reconciliation” mechanisms to combat impunity only because a head of state was indicted. This is selective justice. We did not read a similar communiqué when Haroun and Kushayb were charged by the ICC. The position of African countries shows that they have no respect for conventions they sign (Rome Statue) and that they only seek justice when convenient. One that does not goes as far as the head of state. There is no such thing as ‘African justice’ as I read in some articles. Justice is a universal notion and unless Africans are not human beings I see no reason why they would oppose the ICC.

In the midst of all this debate the ICC no one has mentioned that it is Darfur victims who should be the ones to determine how they want justice. No one has the right to speak on their behalf. I have yet to see a single Darfuri opposing the ICC intervention. It will be helpful to refer to an article by Sara Darehshori from HRW in the Los Angeles Times titled ‘Indictment of Sudan’s president serves peace and justice’.

* The author is Sudan Tribune journalist. He can be reached at [email protected]