Hassan Nafaa* examines the issues around the ICC's request for a warrant against Sudan's president International Criminal Court Prosecutor-General Luis Moreno-Ocampo's request, filed with the ICC preliminary panel, asking for a warrant for the arrest of Sudanese President Omar Hassan Al-Bashir on charges of genocide was based on two developments. The first was the UN Security Council resolution to refer human rights violations in Darfur to the ICC. Under article 13 b of the ICC statute the court may exercise its jurisdiction with respect to crimes of genocide, war crimes and crimes against humanity if "a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations". Moreno-Ocampo clearly felt that the ICC's jurisdiction thus extended to the situation in Darfur despite the fact Sudan is not a state party to the ICC. The second development is that his office received documentation testifying to certain tribes in Darfur being victims of genocide at the hands of the Sudanese army and its Janjaweed militia allies. Attacks by these forces, he said, have already claimed 30,000 lives and driven more than two million people from their homes. There was also evidence of systematic human rights abuses, including rape and other forms of sexual assault, that have led to an estimated 200,000 deaths, as well as evidence of a drive to blockade refugee camps that has resulted in a worsening of conditions for hundreds of thousands and may well constitute a planned campaign of starvation targeting millions of innocent people. Since Moreno-Ocampo has judged the evidence that has come into his hands as substantial enough to file charges, he asked in his report for the arrest and prosecution of the Sudanese head of state before the ICC. Given the crucial repercussions it could have on the future of international law and multilateral institutions the ICC prosecutor-general's report is one of the most significant, and ominous, developments in the history of international relations. It marks a unique precedent. It would be the first time in history that an international governing body has issued a warrant for the arrest of a head of state in the course of his performance of his duties preparatory to prosecuting him. Until now the defendants in all "international" trials were former or defeated heads of state or officials prosecuted in accordance with the law and conditions laid out by the victors. When an institution, acting in the name of an international organisation, asks for the arrest and trial of the president of a member state it constitutes a big leap into the unknown. Whether the ICC panel approves the warrant or not, the prosecutor-general's request also raises unfamiliar political and legal problems. If the warrant is approved under international law Al-Basir must be regarded as officially charged and, hence, suspended from office and placed under arrest. But the only way the international community could possibly carry out the warrant would be for the Security Council to resort to armed force or issue a mandate to some power to take military action for that purpose. On the other hand, if the warrant is turned down, Moreno-Ocampo will probably be compelled to tender his resignation, undermining the credibility of the ICC. The request has had immediate political repercussions on the situation in Sudan, in general, and in Darfur, in particular. A request of this nature naturally triggers spontaneous and powerful reactions from within the Sudanese regime as well as among the Sudanese people. If the ICC panel issues a warrant, it is not difficult to envision a coup or even a popular uprising intended to overthrow the Sudanese head of state and force him to hand himself in. A development of that sort could usher in any number of nightmare scenarios, foremost among them a descent into total anarchy and the spread of civil war. On the other hand, if the people rally around the symbol of their regime, which seems the most likely prospect, Sudanese rejection of the warrant could have severe repercussions on the already disastrous situation in Darfur which, presumably, is the opposite of what the ICC wants to happen. Given such a range of alarming possibilities official and popular reactions to the news of the Moreno-Ocampo request were bound to vary considerably. In general, they reflected two trends of opinion. The first was enthusiastic support for his request for a warrant and for its implementation. But even here advocates fall into two opposing camps, one viewing the matter from a legal perspective and the other from a political one. The former comprises individuals whose consciences are sincerely moved by gross violations of human rights and who are keen to see the perpetrators of such crimes in Darfur punished. They thus regard Moreno-Ocampo's request as a great step forward towards putting an end to such crimes in Sudan and elsewhere. The members of the other camp are not so much motivated by compassion for the humanitarian situation in Darfur as they are by self-interest and their hostility to the Al-Bashir regime. They welcome the prospect of a warrant for his arrest and trial because it will reduce the obstacles that stand in the way of implementing their own agendas in Sudan. The second trend of opinion is to oppose the prosecutor's request outright. Again we find two camps, one approaching the question from a legal standpoint, the other from a political one. The former believes that by agreeing to apply the statutes of the ICC to a non-member state the ICC prosecutor-general has breached an established principle in international law. They hold that in addition to misusing his authority he based his action on international reports of doubtful integrity while ignoring other reports that some insist are more objective and impartial. Nor did Moreno- Ocampo fly to Darfur to ascertain the situation for himself (see Mohamed Salim Al-Awa's, Al-Misri, 19 July 2009). The debate precipitated by Moreno-Ocampo's action in the Egyptian and Arab press, as extensive and deep as it has been, has not yet embraced the extent of the dangers it poses to international law and multilateral organisations. When the Rome Statute establishing the ICC first appeared on 17 July 1998 it raised widespread hopes that were encouraged even further when the Clinton administration approved it on 31 December 1999. Many at the time felt that with the founding of the court the international order had crossed a threshold into a phase in which the provisions of international humanitarian law would be enforced on all countries, from the smallest to the most powerful. The American ultra-right quickly put paid to such hopes when its figurehead, Bush, came to power in November 2000. Within months of taking office Bush retracted Washington's endorsement of the Rome Statue. Why would soon become abundantly clear. In the wake of 11 September 2001, the world learned that his administration had a pre-prepared plan to assert American global hegemony, the key to which entailed seizing direct control over Middle East oil resources, beginning with the invasion of Iraq. Then the Bush administration signed bilateral agreements with many countries in order to avert the threat of any US soldiers or officials coming within the reach of the ICC in the event that they committed crimes that came under the court's remit. Not only did this severely restrict the powers and undermine the mechanisms of the ICC, it gave the US a way to control how it worked. The keys to this were the Security Council and article 13 of the ICC statute, without the US itself needing to fear its provisions. In order to appreciate the full dimensions of the situation we must take stock of two important facts. The first is that the mass human rights abuses in Darfur occurred within the context of an erroneous remedy for a domestic political crisis that foreign parties helped trigger by encouraging local parties with agendas of their own to bear arms and rebel against the regime. This means that human rights abuses in Darfur will continue as long as the political crisis continues and will only end when that crisis is resolved. Second, what is happening in Darfur, as horrible and unpardonable as it is, is part of an even bleaker international picture depicted in the UN report, "A more secure world: our shared responsibility," prepared by the UN Secretary- General's High-Level Panel on Threats, Challenges and Change. This report informs us that the number of people who die or fall ill due to poverty, pollution and communicable diseases is far higher than the total number of casualties from all other sources of threat. The report states that 14 million children die every year due to poverty and lack of adequate healthcare. Of these, six million die of hunger. It states that nearly a billion people (about a sixth of the world's population) suffer from malnourishment, that two billion (about a third of the world's population) do not obtain adequate health care and that 95 per cent of these people live in poor countries. In Africa 30 million people are infected with HIV, of whom 11 million are orphaned children. Yet according to the report efforts to allocate the necessary resources to combat the epidemic have slackened. By 1996, no more than $250 million had been spent in the fight against AIDS. Although the figure had climbed to $2.8 billion by 2002, the world needs at least $10 billion a year to halt the epidemic. Meanwhile, the US launched an illegal war against Iraq, an act that undoubtedly falls under the heading of crimes of aggression that should fall under the ICC's remit, and which so far has cost $6 trillion. The authors of the report could not help but be struck by how quickly the world responded to the events of 11 September compared to how slowly it responded to the genocide in Rwanda which claimed more than a million lives. Who is responsible for this criminal negligence, these disparities and these atrocities, and for their perpetuation? Since most stem from political and military conflicts fed by outside parties, should not all those responsible be held accountable? In view of the current inequities that prevail in the world it is difficult to foresee a truly fair and impartial international judicial system emerging. For such a system to come into being all members of the international community must be subordinate to its provisions, it must have the authority to issue binding rulings, and there most be an international police force that can be called in to enforce its rulings by an authority whose legitimacy is recognised by all and that is politically and legally accountable. The only way out of the predicament raised by Moreno- Ocampo's request for a warrant for the arrest of the Sudanese president is to turn it into an instrument for compelling all concerned parties to engage in a serious search for a settlement to the Darfur crisis. If the international community fails to seize this opportunity and, instead, turns the request into an instrument for escalating the campaign against Al-Bashir's regime, this will aggravate the crisis of international law and perhaps hasten its collapse. * The writer is a professor of political science at Cairo University.
