By Thomas Rose, CBC News.
Ending months of speculation, the International Criminal Court indicted President Omar al-Bashir of Sudan(photo) for crimes committed against the people of Darfur and has now issued a warrant asking the rest of the world to arrest him.
The decision comes 10 years after another international court issued the world’s first indictment against a sitting head of state, Yugoslavia’s Slobodan Milosevic, who died while awaiting trial.
The Kalma camp near the town of Nyala in Darfur, shown here in a photo by the aid group Doctors Without Borders. Sudan ordered 10 leading international humanitarian organizations, including Doctors Without Borders, expelled from Darfur on March 5, 2009 after the ICC issued an arrest warrant for the country’s president.
Back in 1999, Canadian jurist Louise Arbour was the prosecutor in a special court created by the United Nations to deal with atrocities committed in Croatia, Bosnia and Kosovo during the late 1980s and early 1990s.
When she sought her indictment against Milosevic she knew that, if granted, she would have the full force of NATO, the UN and the U.S. backing her up.
Unfortunately for ICC prosecutor Luis Moreno-Ocampo, that is not the case today with al-Bashir.
Instead, Ocampo and the ICC must rely on the good graces of the 108 member states, including Canada, to step up to the plate and take action against the Arab-dominated regime in Khartoum in the battle with its ethnic minorities. But what form might that action be?
If they wanted to, Canada and the other states that have ratified the Rome Statute could strike an international swat team with a mandate to bring al-Bashir to The Hague. But that is unlikely to happen.
Another option would be for al-Bashir to set foot on the soil of a member state, which could then arrest and even prosecute him if it so chose, much as Great Britain did with former Chilean dictator Augusto Pinochet in 1988. But after what happened to Pinochet, al-Bashir isn’t likely to take a ski trip to Banff.
Of course, there is always diplomacy and the threat of sanctions, but the best bet for the ICC to get al-Bashir to The Hague is by petitioning the UN Security Council.
It was the Security Council after all that passed the resolution that gave the ICC the jurisdiction in the first place to investigate allegations of war crimes and genocide in Sudan. (The actual indictment excludes genocide but alleges five counts of war crimes and crimes against humanity for the proxy-waged conflict in Darfur that has seen over 300,000 killed and an estimated 2.5 million forced from their homes in the past five years.)
It is fully within the Security Council’s power to pass another resolution, this time authorizing the kind of force necessary to apprehend the Sudanese leader.
All that would be needed for such a resolution to pass is a majority vote with no objections by the five permanent members of the council, including China, which to date has been one of al-Bashir’s strongest allies at the UN.
China has grown dependent on Sudanese oil to help keep its factories churning in recent years and it is not clear whether the current economic downturn has changed that reliance. Still, the odds are that China would be reluctant to bite the hand that feeds it, so to speak.
In fact, China may well be more likely to work with the African Union, which is sending a delegation to the UN to ask the Security Council to delay the prosecution of al-Bashir to give the peace process in Darfur another chance.
This put the ICC in a bit of a bind. Under the Rome Statute, the court must suspend its prosecution for a period of 12 months if the Security Council requests it. And the council can renew that request at the end of that period, seemingly for as long as it wants.
At the same time, it is hard to see the Security Council simply wanting to put the situation in Sudan on hold for any length of time after it has specifically asked the ICC to investigate the allegations of war crimes in the country’s Darfur region.
The indictment against Sudan’s president can certainly be hailed as a moral victory for Darfur’s victims and the aid groups that have advanced its cause - and have now been booted out of the country for their pains.
It may even be lauded as a victory for the advancement of international law. But it may be some time, if ever, before Omar al-Bashir is ever brought to trial.
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