ANALYSIS: ICC arrest warrant for Sudan president likely to be issued secretly

By Wasil Ali

December 2, 2008 (WASHINGTON) — A long awaited decision by the judges of the International Criminal Court (ICC) on the indictment of Sudanese president Omer Hassan Al-Bashir is likely to remain confidential until precautions are taken to ensure safety of UN staff and aid operations in Sudan.

The ICC prosecutor Luis-Moreno Ocampo warned in a speech at the Council for Foreign Relations Symposium last October that the international community must be prepared for the issuance of an arrest warrant.

“The Judges will decide on the arrest warrant sooner or later and States should adjust to this simple fact sooner than later. We are not going away; the call for justice is not going away; the arrest warrant, if issued, will not go away. States and multilateral organizations have to plan for a post arrest warrant situation” Ocampo said.

Two weeks before the ICC prosecutor presented his case requesting an arrest warrant for Al-Bashir, he informed the UN Secretary General Ban Ki-Moon of his plans prompting heightened security measures by the UN missions throughout the Sudan.

On July 11th the Washington Post officially broke the news that Al-Bashir will be charged by the prosecutor after intense speculations on the identity of the new suspect(s) in the ICC’s second case on Darfur. It was UN officials who leaked what Ocampo has told them.

At that point in time the ICC prosecutor had control over when the names of suspects could be released after considering all relevant factors relating to security of witnesses as well as the impact of possible retaliatory actions by Khartoum on humanitarian and peacekeeping efforts in Darfur.

Despite stepped up harassment by Sudanese authorities to aid workers the situation in Darfur has largely remained stable following the indictment of Al-Bashir. There was no wide scale retaliation by Khartoum of the magnitude expected by most observers.

The next stage is the post-warrant phase if the judges go ahead and endorse the 10 counts of genocide, crimes against humanity and war crimes against Al-Bashir. The arrest warrant then becomes a reality for Khartoum and thus poses more likelihood of retaliation.

After a case is presented to the ICC judges by the prosecutor, it is up to them to review the evidence and issue a decision accordingly. Generally speaking any ruling by the ICC judges on an arrest warrant is to be made public unless the prosecutor specifically requests that it remains under seal.

A sealed decision on an arrest warrant serves two purposes; enhancing chances of apprehending suspects since they are not aware that their arrest is being sought or to take certain measures in the areas where the case is being investigated to protect witnesses and victims alike.

In the ICC case of Uganda against leaders of Lord Resistance Army (LRA) the prosecutor requested that the arrest warrants remain under seal saying that their immediate disclosure could “subject vulnerable groups in Uganda to the risk of retaliatory attacks by the LRA and undermine continuing investigative efforts”.

It was only three months later that the prosecutor asked that the judges to issue an order unsealing the warrants for the five LRA leaders saying that this step would become a “feasible and powerful means of garnering international attention and support for arrest efforts, thus further ensuring the protection of victims, potential witnesses and their families”.

In the case of the Central African Republic (CAR), the arrest warrant was only unsealed after the suspect Jean-Pierre Bemba, former Congolese Vice president, was taken into custody by Belgian authorities and transferred to The Hague.

In both cases however, the applications submitted by the prosecutor were not made public and no one was aware of their existence or their content.

But in Al-Bashir’s case the approach by the ICC prosecutor was different which he justified by saying that his office determined that indicting a sitting head of state carries inevitable political implications and a public discussion is needed on the issue.

Furthermore the investigations on the Darfur case took place outside Sudan and thus all his witnesses reside in safe locations. The biggest issue at stake is retaliation by Khartoum against Darfur civilian population, aid agencies and UN staff. An abrupt decision by the ICC judges could put all those at immediate risk.

Sudanese officials have given ample threats since July on an upcoming “tsunami” in the region if the arrest warrant is issued as the justice minister strongly put it. This included expelling Darfur peacekeepers, aid agencies, withdrawing from UN. Some even have suggested that Darfur may become a safe haven for terrorist groups as a result.

At the conclusion of the heavily redacted public application against the Sudanese president released in September, the ICC prosecutor made four requests of the judges including “entering a finding that there are reasonable grounds to believe that Al-Bashir committed the crimes charged in this application” and issuing an arrest warrant.

However the prosecutor’s office withheld the other two requests he made to the judges of Pre-Trial Chamber I which could imply that sealing the decision was one of them.

Technically, a decision by the ICC judges could have already been issued. The last public activity on the case was submission of additional information to the Judges on November 17th by the prosecutor.

This also means that the Sudanese president risks being apprehended if he travels abroad even if the arrest warrant is issued under seal.

(ST)