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ICC: Would trial of Sudan’s Bashir bring justice?
NewsNotes, May-June 2009

Two months after a warrant was issued for the arrest of Sudanese President Omar al-Bashir, opinion remains divided over its potential long-term effects. Observers question if the warrant, issued March 4 by the International Criminal Court (ICC), might make peace more difficult in Darfur, or even endanger the 2005 Comprehensive Peace Agreement that ended Sudan’s two-decade civil war. Meanwhile, no one has yet been held accountable for the ongoing violence in Darfur, and Bashir, who came to power by force in 1989, won a statement of support at a recent Arab League summit in Qatar.

The warrant accuses Bashir of war crimes and crimes against humanity including murder, extermination and rape. The ICC’s chief prosecutor, Luis Moreno-Ocampo, alleges Bashir tried to destroy the Fur, Masalit and Zaghawa ethnic groups in Darfur. Ocampo asserts the crimes were so broad as to have required “the mobilization of the whole state apparatus, including the armed forces, the intelligence services, the diplomatic and public information bureaucracies, and the justice system.”

Putting Bashir on trial could be difficult. The ICC asked states including signatories to the Rome Statute, which created the court, to help arrest him. Within weeks after his indictment, however, Bashir traveled freely to Egypt, Eritrea, Libya and Qatar, none of which is among the 108 members of the court. In Qatar the Arab League declared in a joint statement, “We stress our solidarity with Sudan and our rejection of the ICC decision.”

In contrast, the Arab Coalition for Darfur, without naming Bashir, declared, “There should be no immunity for those who have committed crimes.” The coalition, formed in May 2008, comprises human rights groups from Algeria, Bahrain, Egypt, Jordan, Iraq, Mauritania, Kuwait, Libya, Palestine, Saudi Arabia, Syria and Yemen.

Human rights groups say more than 300,000 civilians have died in Darfur since 2003 in violence unleashed by Sudanese government forces and government-backed Janjaweed militias. Another two million Darfuris have been rendered homeless. Whether Bashir is criminally responsible is for the ICC to determine, but his actions have been consistent. Hours after the indictment was handed down, he expelled 13 international aid groups from Darfur. The groups provided food and medicine to more than a million people, and cutting off their efforts put hundreds of thousands of lives at risk.

This is the first time the ICC has issued an arrest warrant for a sitting head of state. However, Bashir is the third Sudanese national for whom the court has issued an arrest warrant. Since May 2007 warrants have been outstanding for Sudan’s Minister of State for Humanitarian Affairs Ahmed Harun, and Janjaweed leader Ali Kushayb. The government of Sudan has refused to hand over the suspects.

The UN Security Council has the authority to defer an investigation or prosecution for one year. Both the Arab League and the African Union are seeking such a deferral to maintain the fragile peace process in Sudan. However, the U.S. administration has indicated it is opposed to a 12-month delay.

Fighting in Darfur intensified earlier this year between the rebel Justice and Equality Movement (JEM) and the Sudanese government. In February JEM and the government signed an agreement that could pave the way for more substantial peace talks. However, some expressed concern over those prospects after the ICC issued its arrest warrant for Bashir and JEM promised to work with the ICC.

Nonetheless, human rights groups maintain the ICC is following the right course. Julia Fromholz of Human Rights First said, “The international community must follow through on its commitment to ensure accountability for Darfuri victims, as a sustainable peace is impossible without justice.”

In another ICC-related development, 26 non-governmental organizations (NGOs) have urged the Obama administration to complete its review of the ICC as soon as possible. In an April 16 letter to Secretary of State Hillary Clinton, the NGOs asked the U.S. to participate in the ICC Review Conference next year, to be held in Uganda; and to reinstate the U.S. signature on the Rome Statute.

President Bill Clinton signed the Rome Statute in 2001, but President George W. Bush withdrew the U.S. signature the following year. The U.S. Senate never ratified the treaty. In their April letter to Hillary Clinton, NGOs noted, “The United States is now in the odd and unsustainable position of strongly endorsing the most important action that the ICC has ever taken while evading any commitment to support or participate in it as an institution.”

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