Why not a Secret Arrest Warrant against Sudan’s al-Bashir?

This is the translation of an article that I wrote last week for the legal section of the Austrian newspaper Die Presse (http://diepresse.com/home/recht/rechtallgemein/461258/index.do?_vl_backlink=/home/recht/rechtallgemein/index.do).

Why not a Secret Arrest Warrant against Sudan’s al-Bashir?

The International Criminal Court (ICC) has requested the transfer of the Sudanese President Omar al-Bashir for war crimes and crimes against humanity committed as murder, torture and rape. By issuing an arrest warrant, the ICC Pre-Trial Chamber agreed with the Prosecutor that al-Bashir, as de-jure and de-facto commander of the Sudanese army, should be held accountable for the Darfur campaign launched in 2003.

The Pre-Trial Chamber probably spent much of the nine months that have passed since the application for the arrest warrant on the issue of genocide. Two of the three judges did not endorse the view of the Prosecutor that there were reasonable grounds to believe that al-Bashir has masterminded and implemented a genocidal policy in Darfur. The Prosecutor Luis Moreno-Ocampo certainly went far by including the crime of genocide into his application, since the situation in Darfur is not clear-cut and the specific intent to destroy an ethnic group as a whole or in part is difficult to prove. Nevertheless, the line of reasoning of the Pre-Trial Chamber presented in the nearly 100-page, verdict-like decision is surprising. According to the judges, the evidence presented by the Prosecutor does not exclusively lead to the “only reasonable conclusion” that the Sudanese government has pursued a genocidal policy in Darfur.

Although one can, of course, still doubt the guilt of an indicted person in the pre-trial phase, the Pre-Trial Chamber used a similar threshold to the one necessary for a conviction. The Prosecutor can appeal the decision or apply for the extension of the charges with new evidence, even if al-Bashir faces life imprisonment in any case. [Note: The Prosecutor appealed the decision on 13 March 2009. http://www.icc-cpi.int/NR/exeres/CC751CCC-B58D-49A8-8073-83E0D06D3717.htm]

The issue whether genocide or “only” war crimes and crimes against humanity have caused the death of hundreds of thousands and the displacement of millions of people should, however, not make a difference for the international community. The latter should have reacted more strongly in any case. In the long run, it might even be helpful for the reconciliation of the warring parties in Darfur if the ethnic component is not emphasized through the charge of “genocide”, since the conflict was exacerbated precisely because of the political exploitation of the construct of “Africans” and “Arabs” by the government of Sudan.

The warrant of arrest, the first one issued by the ICC against a sitting head of state, has already had detrimental effects on the population in Darfur. Right after the decision of the ICC judges, Khartoum expelled international humanitarian organizations, on which millions of Darfuris depend for their survival.

Considering such foreseeable reactions, the arrest warrant arguably exposes the population of Darfur to additional risks rather than helping it to bring about justice sooner or later. A secret warrant could have prevented that the Sudanese government, as an act of defiance, hamper the humanitarian work in Darfur. A secret warrant could also have been more efficient. The former Vice-President of the Democratic Republic of Congo, for instance, was arrested in Belgium following the issuance of a secret warrant and now awaits his trial in The Hague.

However, in the case of al-Bashir, the more aggressive option of publicly stigmatizing him as a war criminal was apparently considered more promising. As a matter of fact, it can be argued that the warrant might contribute to challenging the legitimacy of the current regime in Sudan itself. The upcoming elections, scheduled for the end of this year, could therefore become a decisive test for the ruling party.

Obligation to cooperate
Despite the fact that Khartoum has not ratified the Rome Statute, the government of Sudan is obliged to cooperate with the Court because of resolution 1593, with which the UN Security Council referred the situation in Darfur in 2005 to the ICC. Khartoum can, therefore, not claim that its head of state is immune under international law. However, the Security Council did not oblige other states to cooperate with the ICC, which means that the procedural immunity of al-Bashir under customary international law has not been lifted.

Do states respect immunity?
Although the immunity of a head of state does not impede the Court from exercising jurisdiction according to its own statute, the ICC cannot issue a request for transfer to a third state, if this means that the state violates its obligations under international law. But even if arresting and transferring al-Bashir would amount to a breach of international law, several states, in particular ICC states parties, are ready to take this risk given the gravity of the charges. And even though al-Bashir said that the judges could “eat” their arrest warrant, he will now definitely be more cautious when travelling abroad.

The next ICC warrants in Sudan could be issued against rebel leaders who, according to the Prosecutor, are responsible for one of the most serious attacks on international peacekeepers in Darfur. These warrants would make it easier to dismiss the criticism that the ICC is only a Western instrument to destabilize the Sudanese government, and all parties to the conflict would then have something to lose and something to win from cooperating with the ICC.