CommentaryJ. Peter Pham [Director, Nelson Institute for International and Public Affairs at James Madison University]: "The decision of Pre-Trial Chamber I of the International Criminal Court (ICC) this week to issue a warrant of arrest [PDF file] for Sudan's President Omar Hassan Ahmad Al Bashir for war crimes and crimes against humanity, including intentionally directing attacks on civilian populations in Darfur and pillaging towns and villages in the region, as well as acts of murder, extermination, forcible transfer, torture, and rape, has divided the international community as well as many individuals and groups which ordinarily find common ground on issues of global justice.
On the one side are those who applauded the ICC's first-ever indictment of a sitting head of state as a significant advance in realizing the vision of the tribunal's architects to put an end to impunity for the perpetrators of the most serious crimes which "must not go unpunished" as well as securing a measure of justice for the Fur, Masalit and Zaghawa ethnic groups and other victims. On the other are those who contend that the Court's action will not only set back efforts to resolve Sudan's multiple conflicts, but will endanger the United Nations peacekeeping forces presently in the country as well as the humanitarian organizations relieving the suffering of the very peoples on whose behalf the ICC acted.
While it is true that the Sudanese regime reacted to the ICC decision by immediately decreeing the expulsion of more than a dozen high-profile aid groups, including CARE, Médecins sans Frontières, Oxfam, and Save the Children, whether the ban is actually enforced remains to be seen. And, as I have argued in an article for a defense publication earlier this week, given the consistent backing that Al Bashir has received from the African Union – the regional organization is currently sending a high-level delegation to the Security Council to join the Arab League in pleading for a suspension of the judicial proceedings under Article 16 of the Rome Statute of the ICC – it is highly unlikely that Khartoum would risk alienating the no fewer than thirty African countries participating in the two UN missions in Sudan by attacking their blue-helmeted military and police personnel.
The question, then, is what next? Of course, it is inconceivable that Al Bashir, who has held tightly to the reins of power since he seized them in a 1989 coup d'état against Sudan's democratically-elected government, will simply turn himself in at The Hague anytime soon. However, cumulatively ICC prosecutor Luis Moreno-Ocampo's public application [PDF file]for a warrant last year and the Pre-Trial Chamber's decision this week to accede to his motion on all counts except the three concerning the crime of genocide where, Judge Anita UÅ¡acka dissenting, it found the evidence of the Sudanese ruler's specific intent (dolus specialis) insufficient, represents a major turning point that shifts the dynamics on the ground in Sudan and, ultimately, opens the way for the eventual execution of the arrest order.
First, unless the legal proceedings in Prosecutor v. Al Bashir are suspended – an action that would take a resolution of the Security Council that seems highly unlikely given that all five permanent members would have to agree to it and, given the commitments it made with respect to the ICC in general and the Darfur prosecutions in particular during the recent campaign [PDF file], it would be politically difficult for the Obama administration to support such a measure – the Sudanese ruler will inevitably become progressively isolated. While the AU as an organization may not like the indictment, some thirty of its fifty-three members adhere to the ICC, constituting the largest regional bloc within the Assembly of States Parties, and bound under Article 89 of the Rome Statute to arrest and transfer those sought by the tribunal. Even though Sudan is not a signatory to the Statute, the Article 98 exception covering cases where "a request for surrender or assistance…would require the requested State to act inconsistently with its obligations under international law with respect to State or diplomatic immunity" would not be applicable if Al Bashir continues to travel abroad since the Darfur investigation was referred to the ICC by the Security Council acting under the authority of Chapter VII of the UN Charter [PDF file]. Both Article 103 of the Charter and the constant jurisprudence of various international tribunals affirm that the obligation to cooperate when mandated by decisions of the Security Council such as the dispositive part of resolution 1593 takes precedent over any immunities under customary law which might otherwise exist. Thus, even if they are loath to actually detain a fellow leader, Africa's heads of state will not appreciate being put in an awkward position by their counterpart from Sudan. So, for want of willing hosts, Al Bashir can expect to be staying home more often than not.
Second, while Al Bashir may momentarily be able to rally support among his core domestic constituencies by appealing to nationalism, his authority will weaken if he is increasingly marginalized internationally. Others within Sudan's ruling National Congress Party (NCP) and the military establishment may come to regard him as too much of a liability and, either by themselves or in tandem with influential rivals of Bashir within Khartoum's ruling Arab Islamist elite, like his former mentor Hassan Al Turabi, will move to push him aside in the same way the clique around Charles Taylor decided to turn on the Liberian leader and survive rather than to go down with him after his indictment by the Special Court for Sierra Leone was unsealed by prosecutor David M. Crane in 2003. Certainly there will be entrenched interests within the Sudanese political and economic power structures – including the People's Republic of China which has invested billions of dollars in the country and depends on it for nearly one-tenth of its petroleum imports – which will conclude that it is well-nigh impossible to maintain the investment climate that has hitherto delivered annual GDP growth rates near 10 percent while saddled with an indicted war criminal as head of state.
Third, the arrest warrant accelerates the ongoing disintegration of the Sudanese state. Even before the prosecutor's move against Al Bashir last year, the 2005 Comprehensive Peace Agreement (CPA) which ended the decades of civil war between the Northern-dominated government in Khartoum and the peoples of South Sudan was faltering with almost every benchmark for implementation missed. There is now almost no reasonable expectation that the general elections, including that for the presidency, which are supposed to be held by July will actually take place. While some worry that a delay in the poll may complicate matters for the all-important self-determination referendum for South Sudan scheduled for 2011, a more realistic analysis would posit that the latter vote was never going to take place. No government in Khartoum can afford to allow South Sudan to actually exercise its option under the CPA and go its own way, taking with it some 90 percent of Sudan's proven oil reserves. Hence, when the election in July fails to take place, most South Sudanese are likely to draw their own conclusions and the regional government may well proceed to a unilateral declaration of independence without waiting two more years. Whether the secession takes place peacefully or a new north-south conflict erupts, the practical result will be the same: the rulers in Khartoum will be deprived of the very revenues which they have up to now used both to purchase the allegiance of supporters and to fuel their violent campaigns in the peripheral regions like Darfur, thus forcing whatever regime elements eventually succeed Al Bashir to seek a genuine settlement of Sudan's conflicts.
Fourth, if only to escape the opprobrium which Al Bashir has brought on the Sudanese state, almost any future government in Khartoum will likely prove more cooperative with the ICC, especially with respect to the arrest warrant [PDF file] issued by the court in 2007 for the current minister of state for humanitarian affairs, Ahmad Muhammad Harun, and janjaweed leader Ali Muhammad Al Abd-Al-Rahman, a.k.a. Ali Kushayb. In their decision regarding Al Bashir, the judges noted Sudan's systematic noncompliance since then and warned that the competent chamber "may make a finding to that effect" and "refer the matter…to the Security Council." It goes without saying that such an Article 87 referral back to the Security Council would be the last thing any government trying to overcome the bitter legacy of the current regime would want and hence Khartoum might find it expedient to surrender Harun and Kushayb. The trial of these two mid-level figures would, in turn, not only contribute to the ICC's own progress as a working tribunal, but also to the further laying of the evidentiary groundwork for the eventual prosecution of those with even greater responsibility for the terrible crimes which have taken place in Darfur these past six years.
In short, while the judges who authorized the arrest warrant for Al Bashir may not have envisioned it in this perspective, theirs was not only a legal action with normative force, but also a strategic move with profound geopolitical implications. And because of the particular realities on the ground in Sudan, it might well prove that international human rights law and realpolitik converge in this case to give both Al Bashir and his victims their day in court."
