Where and How to Sit? The Dilemma of the International Criminal Court

Where and How to Sit? The Dilemma of the International Criminal Court

Where and How to Sit? The Darfur Genocide and the Dilemma of the International Criminal Court
 
When the Chief Prosecutor of the International Criminal Court in the Hague sought to indict the sitting president of The Sudan, Mr. Omar al-Bashir last July for crimes against humanity and genocide, the issue of how to bring a sitting Head of State before the tribunal has exercised the minds of many. Politicians, human rights activists, diplomats and international lawyers, Sudanese and non-Sudanese, have wondered and debated how justice for the Darfur genocide victims could be served. To bring Mr. al-Bashir, as a sitting Head of State, to trial in The Hague would be unprecedented. Leaving him in power in The Sudan, while trying him in absentia in The Hague would enable him to continue his ways and resist any attempts at relief for the victims or effective peaceful cessation of the civil strife; the opposition Umma Party leader, Mr. Sadiq al-Mahdi, has voiced concern that this would lead to chaos in The Sudan .  A trial in The Hague could be challenged by Mr. al Bashir and his supporters for being biased and not having Sudanese representation.
 
To overcome such objections, the US had proposed a regional court indeed utilizing the existing infrastructure of the International Criminal Tribunal for Rwanda, that sits in Tanzania, even though it is not a party to the Rome Statute of the International Criminal Court of July 17, 1998. This simply changes the venue; the involvement of African Union jurists, thought by the US to ensure more of a sense of local fairness and regional responsibility, would be equally subject of claims of anti-al-Bashir bias.
 
The Rule of Law Index for The Sudan not being very high, the idea that a trial fair to the victims could be conducted in Sudan while Mr. al-Bashir remains in power is hard to imagine. Yet this is precisely what Mr. al-Mahdi has proposed. He calls for a specialized tribunal that would include both Sudanese and non-Sudanese jurists sitting in The Sudan. 
 
This proposal begs several questions. Who will ensure the security and independence of the judges, the prosecution, the witnesses, the victims?  Who will pay for the tribunal’s physical infrastructure needs?  Even accepting the Sudanese government’s claims that its army and police forces were not involved in any of these crimes at its face value, which of the above mentioned participants would be comfortable with the knowledge that these local authorities, who were ineffective in preventing these heinous crimes, would be able to provide security and protect the logistical needs of the tribunal’s participants? What authority would enforce the tribunal’s interim and final decisions, particularly if they are against Mr. al-Bashir, who has control of the local armed forces?
 
Answers to these questions and the ICC’s dilemma of how to proceed against a sitting Head of State need to be found and soon; Mr. Mugabe of Zimbabwe has attracted the ICC’s attention for rampant violations of human rights there. But the precedent for the international community through its organs to disrupt national constitutional arrangements –as undemocratic as they may be – is viewed by many with caution. One could look back at the examples of Adolf Hitler or Josef Stalin and wish there was a supranational institution that could have brought a halt to their depredations before they got worse. One is tempted to think that a multi-national special forces unit could be deployed to descend upon and take into custody such errant Heads of State – but who could ensure the integrity of such forces and their use only against wrong-doers. That is the fear that most statesmen have. Surely many jihadists would say that Peres, Lipvi, Netanyahu, and Bush are guilty of war crimes and crimes against humanity and should be rounded up in such a way and taken to trial in The Hague. Rule of Law analysis is often distorted in such cases by political concerns.
 
The existing ICC-related tribunals so far have a somewhat checkered record, but they have all made some strides forward. The key to such successes as they have had lies in the fact that they are dealing with leaders who are out of power with no claims to political legitimacy, however flimsy, in their support. But for such tribunals to have to wait for wrongdoers to be ousted from office in order to punish them seems to encourage the wrongdoers to hold on as long as possible, Mr. Mugabe and Mr. al-Bashir being clear examples, thus allowing them to sustain their wrongdoing and perhaps even eliminate all opponents, witnesses and destroy evidence. Is there no answer?
 

Comments

Thomas J.R. Stadnik, Esq.
  • 03-12-2009

There are always more questions than answers when the international community debates the prosecution of war crimes, crimes against humanity and genocide.  The ICC is still in the phase of firsts with prosecuting indicted genocidists, and as such, is marginally decisive.  That said, it is one of the most important international bodies every created and should be allowed a wide berth to stumble its way through its mission to tear down the wall of impunity and sovereignty that most oppressive governments hide behind.  The ICC s primary challenge is finding an agreeable enforcement/arrest mechanism, i.e. military apprehension of indicted individuals.  Although al Bashir will not, realistically, face arrest until he is deposed by some internal force, the issuance of the ICC indictment bothered him enough to compel him to kick-out every foreign aid agency operating in Sudan.  That could be seen as an indication of the ICC s credibility, even in a mind as evil as al Bashir's.