Darfur Genocide Ongoing Test of ICC and US

The two most empty words in the english language have become, "never again". Our maybe that's limited simply to dealing with Germany? It is obviously not a universal maxim as genocide and a myriad number of other human rights crimes are committed daily in Darfur. As awful and tragic as the situation is signs of the beginning of progress towards taking action have appeared. Earlier this year International Criminal Court prosecutor Luis Moreno-Ocampo sought a warrant for the arrest of Sitting Sudanese President Omar al-Beshir. The ruling on that request will come down soon and if it comes back in favor of arresting al-Bashir look for all hell to break loose.
The evidence indicating that al-Bashir has been active in soliciting, conspiring, and complicit in, crimes of genocide in Darfur is strong. For one example,

“government bombers, helicopter gunships, tanks and artillery were used against unarmed civilians to clear a 100-kilometer area around the oils fields. Witnesses reported that over 1,000 government soldiers swept through Ruweng county, wreaking human and material destruction, including destroying 17 churches.”

He is not a good guy. However as with anything on the international stage it gets complicated.

Quite apart from the fact that Sudan is not a signatory to the Rome Statute, indicting Al Bashir will make it even more difficult to revive the stalled peace process in Darfur. It is feared that a sizable segment of the Sudanese population that supports Al Bashir will become even more antagonistic towards the targeted ethnic groups in Darfur. The chasm that separates them from the rest of the population in Darfur and the Sudan will become wider.

The rest of the article by Dr. Chandra Muzaffar, President of the International Movement for a Just World (JUST) and Professor of Global Studies, Universiti Sains Malaysia goes on to discuss the issues involving china and one of the root causes of the conflict, lack of water. In fact supplying water to the whole country would go a long way to resolving the conflict. However, simply ending the conflict is not enough to truly count justice served. Those who commit genocide should not escape unpunished.

The International Criminal Court is trying to become the body that assures justice is done in this case. They face stiff resistance at the idea of indicting al-Bashir based on the possible repercussions to the peace process and a possible increase in the genocide. This has created a possible crisis for the court because it is forbidden for signatories to the Rome Statute to provide safe havens for those under arrest warrants and wanted by ICC. UN members also have a duty to carry out the arrest since it is the UNSC that authorized the ICC to handle the case.

The al-Bahsir case is a major test for the credibility of the ICC because of the fact that al-Bashir is a sitting head of state and that Sudan has not signed the Rome Statute. That Sudan is not a party to the statute has raised a question about the legitimacy of indicting him based on a treaty he is not a party to. This will be a test of whether the court does in fact have universal territorial jurisdiction or whether they have jurisdiction limited to those of the signatory states. The answer turns on the reaction of the international community, where the reaction of the United States will be important. If the international community applies sanctions to sudan based on the indictment of al-Bashir or takes other steps it will lend great weight to the prestige and authority of the court in dealing with war crimes and crimes against humanity.

The ICC is an independent court that operates without any threat of security council veto. This is a primary reason the United States opted not to become a signatory. The loss of sovereignty was not acceptable. It also reveals why the outcome has such major implications for the United States. If the court truly has universal territorial jurisdiction it could conceivably indict a sitting US president regardless of whether the US is a signatory. So the US reaction to a possible warrant will come under strict scrutiny. President Obama will have a large role in deciding what path the international community takes in dealing with sudan and darfur.

The drama around the ICC and Darfur and the US is made even greater because Obama has been a leading American political figure in dealing with Darfur. He has been very outspoken on the issue and his voting record was graded A+ by the group DarfurScores.org. He was asked about how the US should deal with the crisis in Darfur in the second presidential debate where he advocated providing logistical support and air power in the form of a no fly zone. He has not advocated putting US boots on the ground. In conjunction with these military measures he has also advocated a position that may become a reality if the the warrant for al-Bashir stands, sanctions. First in 2004 and then again in 2007 obama voiced the opinion that,

"First, the UN Security Council should impose tough sanctions on the Khartoum government immediately. These sanctions should freeze the assets of the Sudanese government, its leaders and business affiliates; outlaw arms sales and transfers to Sudan; and prohibit the purchase of Sudanese oil. The United States must make this a high priority in our relations with other governments on the Security Council."

It is hard to tell if Obama would back off his call for sanctions if they were predicated on the issuance of an arrest warrant for al-Bashir. That condition may materially change the situation because of the implications vis-a-vis the ICC. Not to mention the balancing act that would be needed because of China's interest in the situation.

China was another country who did not sign onto the Rome Statute and they have a vested interest in sudan. The interest comes in the form of oil and arms. They arent too keen on the arrest of al-Bashir,

This morning China – Sudan's biggest arms supplier and a leading investor in the country – said it had "grave concerns and misgivings" over the ICC's decision.

"The ICC's actions must be beneficial to the stability of the Darfur region and the appropriate settlement of the issue, not the contrary," a spokesman for the foreign ministry in Beijing, Liu Jianchao, told reporters.

When asked whether China would use its position as a veto-wielding UN security council member to obstruct the court's actions against Bashir, the spokesman declined to rule this out, saying: "China will continue consultation with other members of the UN security council but, as for the outcome, that I don't know."

As i mentioned China alone will not be able to veto the actions of the ICC. What needs to happen is a security council resolution that utilizes article 16 of the Rome Statutes,

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

This means that any member with veto power could kill an attempt to defer the prosecution. President Bush is actually on record that he will veto an attempt to defer. Obama is not yet on record. In all likely hood he would not have to make the call because France has stated they would veto any such deferral.

Something needs to be done about the situation in Darfur. The ICC is attempting to address the situation and increase its authority and prestige. In doing this they have put the international community, especially the US and President Obama to the test. If the court fails in its bid to try al-Bahsir its reputation and power will take a significant blow. If it succeeds it will be a momentous moment in international law and human rights. The cost of strengthening the ICC might very well be paid by the people it is tasked with protecting, the people of Darfur. We still have little idea how China will respond to the threats on their interests. A very complicated international situation that i'm glad George W. Bush wont be deciding.