ICC under fire for political indictment of Sudan’s president Bashir

Empowering Weak & Oppressed

M.S. Ahmed

Ramadan 01, 1429 2008-09-01


by M.S. Ahmed (World, Crescent International Vol. 37, No. 7, Ramadan, 1429)

When Lui Moreno-Ocampo, the prosecutor general of the International Criminal Court (ICC), filed a charge of genocide against president Omar Hasan al-Bashir on July 14, he was widely perceived as putting at risk the peace agreement already reached – and largely implemented – between North and South Sudan, and the efforts now being made to bring peace to Darfur, the conflict-ridden remote western region and the stage of the alleged genocide. Not only did the African Union (AU) and the Arab League take up the issue and call on the prosecutor to withdraw the indictment, or at least delay it, but international experts and media-commentators also took him to task over his “ill-conceived and dangerous move”, urging him to abandon it at least for the time being.

Interestingly, many of those experts and commentators do not believe that Bashir is innocent of the charges made against him, with some of them even stating their belief in his guilt openly. Some have argued that the indictment would encourage the president to exploit the charge and step up his aggression against those opposed to him. Some have argued that not only is he defiant by nature, but he also believes that Western leaders, such as president George W. Bush, are out to get him – concluding that his reaction to the indictment would be too aggressive and lead to even greater and wider violence. But much to the dismay of Moreno-Ocampo, human-rights lawyers and non-governmental organisations have joined the strong and public criticism of his project.

It was on July 14 that Moreno-Ocampo first filed his indictment of Bashir before the ICC, requesting it to issue a warrant for his arrest, knowing that the judges would take two or three months to decide whether to accept or reject his application. At the time of writing, the judges are still pondering their decision, but if the criticism to which both the application for the arrest warrant and the evidence backing it were subjected is anything to go by, it is difficult to see how they can order Bashir to be arrested – especially when he is the first serving president to be indicted.

Add to this the technical point –widely raised by Moreno-Ocampo’s critics – that Sudan is not bound by the Treaty of Rome because it was not among the 120 states that signed it ten years ago to establish the ICC, which began its operations five years later. Another state that did not sign the treaty is Zimbabwe, whose president, Robert Mugabe, has so far successfully avoided any indictment by the court, mainly for this reason. Mugabe has been widely accused of committing war crimes and acts of repression in his country to suppress the widespread and strong opposition to his dictatorial rule. However, he has so far managed to escape the attention of the prosecutor, who has chosen to file against Bashir no less than ten charges, including war crimes and genocide, all in connection with Darfur.

Since beginning its operations five years ago, the ICC has opened four investigations, all of them in Africa: in the Democratic Republic of Congo, northern Uganda, the Central African Republic, and Darfur. So far, twelve arrest-warrants have been issued, including two for war crimes and crimes against humanity, allegedly committed in Darfur by Ahmed Haroun, the minster of state for humanitarian affairs, and by Ali Khushayb, the leader of the government-backed Janjaweed militia. But to the dismay of the prosecutor, he lost the case against the Congolese warlord, Thomas Lubanga, in the first pre-trial judgement issued on those charges. The judges ruled that Lubanga could not get a fair trial because the prosecutor had wrongly used confidentiality agreements to withhold evidence that might have pointed to his innocence on charges of conscripting child-soldiers.

But even before this adverse judgement Moreno-Ocampo was accused by human-rights groups of employing investigators who were not trained to carry out their duties or functions properly. Even more seriously, he was accused of dismissing out of hand members of his staff who disagreed with him or criticised him. The combined effect of this has been to have a “burn-out effect” even on the experienced ones, forcing many to leave. On August 18 Richard Dicker, director of Human Rights Watch’s international justice programme, was quoted as saying: “There are simply not enough [investigators] to handle the rigorous demands of these investigations and there is the perception that their efforts are not sufficiently valued.”

One example of unfair dismissal of senior staff came to light when Moreno-Ocampo removed his media advisor, who had made a complaint against him of sexual misconduct with a South African journalist. The court dismissed the claim as unreliable but in July the advisor was awarded two years’ salary as compensation for wrongful dismissal and £19,700 in “moral damages” by a tribunal of the International Labour Organisation. The ILO ruled that the prosecutor had failed to follow due process and had “seriously infringed” the advisor’s rights.

It was not surprising that Moreno-Ocampo had been criticised for such misconduct, but he played into the hands of his critics when he announced that he would seek a warrant of arrest against Bashir only days before filing his charge. During his press conference he also referred to the evidence against Bashir, in a clear attempt to defend his course of action. Because criminal charges must first be revealed to the court and not discussed before, he was strongly and widely criticised for this misconduct; some even called for his removal from office. Alex de Waal – the British academic who is an expert on Darfur and attended the prosecutor’s press conference – accused him of calling for regime-change and thereby politicising the judicial issue. Mark Klamberg, a Swedish academic who has worked in court, said that it should consider removing the prosecutor. Moreover, Antonio Cassese, chair of the UN international commission of enquiry on Darfur, which dismissed the charge of genocide, described the decision as “puzzling”.

In these circumstances, it is not unreasonable to demand the removal of Moreno-Ocampo before anyone is prosecuted on charges similar to those levelled against Bashir. It is not strange, either, that Bashir refuses to be intimidated and continues to be defiant. Other Muslim rulers and office-holders would do well to take note.

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