Why only President Omar al-Bashir and not U.S. President George Bush too?

ICC Prosecutor's Indictment of Sudan President al-Bashir Called Double Standard of Justice

The chief prosecutor for the International Criminal Court (ICC), Luis Moreno-Ocampo requested on July 14 that the Court issue an arrest warrant for the sitting head of state of Sudan, President Omar al-Bashir. The Court will decide on the request in the next two or three months. The request, however, has met with a strong chorus of criticism.

At a press conference held at the United Nations by the ICC Prosecutor on Thursday, July 17, one journalist asked Ocampo if his decision to prosecute the head of state of the Sudan rather than the crimes committed in Iraq and Palestine wasn't the sign of the double standard of the court? Ocampo responded that since the UN Security Council had referred the Darfur situation to the ICC, this was a step toward universal justice.

The Sudan is not a party to the Rome Statute creating the ICC. It would not have fallen under the jurisdiction of the Court if the Security Council had not acted to refer Darfur to the Court. The Security Council has the ability to refer those nations who would not be otherwise under its jurisdiction to the Court.1

For example, the U.S. like Sudan is not a party to the Rome Statute. For U.S. President George Bush to be similarly indicted by Ocampo for commanding the invasion and actions of the U.S. in Iraq, would require a Security Council referral to the ICC for such action. Since the U.S. has a veto power in the Security Council, which Sudan does not have, a basis exists for the criticism of a double standard. In fact, critics see the indictment of al-Bashir but not Bush, as the exercise of a double standard which imposes a western style of justice as a new form of neocolonialism on Africa.

Ocampo's recent press conference, was part of a set of events held at the UN to commemorate the 10th anniversary of the Rome Statute establishing the court in 1998. Christian Wenaweser, the Ambassador to the UN from Liechtenstein, also spoke at the press conference. He noted that the ICC owed its existence to the support it received from African States. Ocampo and Wenaweser, however, failed to acknowledge the strong condemnation the indictment of al-Bashir has received from African states. Both the Arab League and the African Union, two organizations of importance in Africa, condemned the action. The African Union and the Arab League are seeking a means of asking that the indictment not be issued by the Court. Both favor working for a political solution to the fighting in the Sudan, encouraging the rebels fighting in the Darfur region to come to an agreement with the Sudanese government, rather than focusing on a court proceeding against al-Bashir. If an arrest warrant is issued and can be carried out, the result would essentially be a regime change in the Sudan.

There is a concern that if the ICC issues its arrest warrant, this will encourage the rebels fighting in Darfur to refuse to negotiate with the Sudanese government, and even to step up their military action against the government.

What's Behind Ocampo's Move?

At the July 17 UN press conference, Ocampo was asked his response to accounts circulating that the ICC would withdraw the request for a warrant for the arrest of the Sudanese President, if Sudan were to turn over to the ICC the two previously indicted Sudanese, Ahmed Haroun and Ali Kosheib. Ocampo's said that would be a decision the judges would make.

The inability of the ICC to prosecute a number of those it has indicted has become a serious challenge to the existence of the Court. Amnesty International describes the extent of the problem.(4)

To date, the Court has issued 12 public arrest warrants, with another requested by the Prosecutor on 14 July 2008. Only four people have been arrested and surrendered for trial. The first case has been stayed. The accused may be released on fair trial grounds.

Responding to a question of whether there was a political intent to his decision to ask the court for the arrest warrant for al-Bashir just in time for the 10th anniversary celebration of the court, Ocampo denied that there was a political motive. Another journalist questioned why Ocampo leaked his plan to indict al-Bashir several days before bringing the actual request to the court, thereby shining a spotlight on his action. Ocampo responded that what he did had to be predictable, that there were peacekeepers involved in Sudan who were not connected with him who would have to plan. "That is why I did it," he said about his reason for the leak.

A report about a meeting about the Court held at the UN in November - December 2007, however, provides another possible motive. The report explains that, "From the moment the International Criminal Court opened its annual two-week meeting, its credibility was being put to the test because of its failure to start prosecuting two Sudanese charged with crimes against humanity in conflict-wracked Darfur. Sudan had earlier on Friday reiterated its refusal to hand them over for trial."

There is a problem revealed by the difficulty the Court is facing having the accused turned over to the Court. Is the fact that al-Bashir didn't turn over the indicted Sudanese and the challenge this represents to the credibility of the court a factor in Ocampo's decision to indict the Sudanese President?

The Darfur case was referred to the court in March 2005 by the UN Security Council. Security Council resolution 1593 was passed by 11 Security Council members with 4 members abstaining. The United States was one of the abstentions. The overriding concern of the US was to establish that no U.S. officials would be liable for ICC jurisdiction as a result of the Security Council's referral of a non party to the Rome Treaty being put under the jurisdiction of the ICC. (See Para. 6 of SC Resol. 1593)

Another of the abstentions was by the Algerian Ambassador to the UN. In 2005 Algeria was one of the nonpermanent members of the Security Council. Abdallah Baali, the Algerian Ambassador explained that the African Union had been asked to make a proposal to the Security Council with the aim of restoring harmonious relations among the population of Darfur. The proposal offered by Olusegun Obasanjo, then the president of the African Union, had not been accorded any consideration by the Security Council. Explaining why he abstained from voting for the referral of Darfur to the ICC, the Algerian Ambassador said:

We also underline that one cannot claim to support the African Union and leave to it the task of proposing African solutions suited to the various types of crises the continent has experienced, only to brush aside its proposals to the Council without even deigning to consider them....

The Ambassador reasoned that: "And it is the African approach, based on justice and reconciliation, that has enabled communities that have ripped one another apart to make the effort, once justice has been served, to learn how to live together once again." He concludes, "those defending the principle of universal justice have in fact ensured that, in this domain, the use of double standards -- of which some have accused the Council -- and a two-track justice were most unexpectedly demonstrated."

Threat to the peace process?

A number of the commentators who have responded to Ocampo's request for an arrest warrant for al-Bashir contend that what Ocampo has done is harmful to the African Union's efforts toward a peaceful resolution of the Darfur crisis.

Speaking to journalists, Abdalmahmood Abdalhaleem Mohamad, Sudan's ambassador to the UN, described what Sudan expects would be some of the consequences of this action of the ICC. He explained that after this indictment, the efforts to get the rebels to be part of the peace process would become "a distant dream". He added, "The rebels will say that they are not willing to talk with a criminal government and it will encourage them to invade the capital of Sudan. They are saying that already and secondly they are also threatening to go to Khartom again and invade the capital. They are saying if this government does not surrender itself we will go to the capital and take it down." This action, he explained, will put the peace process in danger: „The Comprehensive Peace Action (CPA) in particular is in danger because if you weaken or question the legitimacy and credibility of the presidency then you target the CPA or threaten the CPA with dire consequences."

An article in The Telegraph (UK) describes how the indictment has brought many in Sudan to the defense of their president. The article quotes one Sudanese, Al Siir Sabil who explains:

I support the opposition but I cannot accept what the ICC is doing. This is an indignity for all the people of Sudan. We are the people who should choose who our president is.

With opposition from the African Union, the Arab League and ordinary Sudanese people, Ocampo may have contributed more to a disrespect for the ICC than any contribution to improvement in Darfur or to justice.