1.1 Background to the Study
The Rome Treaty of 17th July 1998, where about 120 countries adopted the Rome Statute to establish the International Criminal Court (ICC) was meant to give the world a permanent mechanism for punishing those responsible for the gravest of human rights violations, of the sort that have been committed in Rwanda, Bosnia and Kosovo. The Treaty, which enjoys broad international support, was carefully negotiated to ensure that the Court will focus on atrocities such as these, and operate according to the highest standards of professionalism and integrity.
The International Criminal Court as a site of public affairs is a magnet for political and legal participation. This participation often oversteps the geographical frontiers of sovereign states. Following the signing of the Rome Statues in 1998 by the then US President Bill Clinton and the subsequent birth of the ICC in 2002, an international legal structure based on the framework of the US Constitution was established (Matthew, 2012). The Court, which came into being in July 2002, is a permanent institution which has the power to exercise its jurisdiction over persons for the most serious crimes of international concern, which includes genocide; crimes against humanity; war crimes; and the crime of aggression. These countries believed that global justice would benefit from, and be greatly enhanced, by the creation of an international criminal justice regime empowered to prosecute individuals guilty of gross atrocities and human rights violations, including war crimes, crimes against humanity and genocide. Africa, under the aegis of the African Union (AU), naturally agreed with the above and gave tacit and open support for the creation of the Court.
There were two major reasons for Africa’s strong support for the establishment of the ICC, which were majorly the decapitation and genocide that gripped Rwanda in 1994 and the need to find ways to prevent powerful countries from preying on weaker ones. There was urgent need in Africa to squarely confront impunity and the mass violation of human rights, as well as prevent militarily, politically and economically stronger countries from invading weaker ones. In terms of the latter, the inclusion of crimes of aggression the planning, preparation, initiation or execution of an act of using armed force by a state against the sovereignty, territorial integrity or political independence of another state, was especially attractive to African countries (ICC, 2012). Today, there are 139 signatories and 122 states parties. 43 African countries are signatories to the Rome State and, of these, 31 are state parties but may not have ratified the Statute (UN Treaty Collection, 2014).
Despite this seeming overwhelming support for the creation of the ICC and its need in global politics, there seems to be increasing critical looks and aspersious looks at the ICC, as the continent seems to be currently having strained relations between Africa and the Court. In fact, the African Union has asked its members to implement a policy of non-compliance and non-cooperation with the ICC. Thus, for the Court to remain a credible institution for the execution of international justice, the AU is asking for a reform that would ensure that the sovereignty of the African continent is not undermined.
President Al-Bashir came to power in Sudan in 1989 after leading a military coup that overthrew the former Sudanese Government (Lanberta Times, June 2009). In early 2003, a conflict emerged in the Darfur region when the Sudanese Liberation Movement (SLM) and the Justice and Equality Movement (JEM) attacked the El-Fasher airport as an act against the Sudanese Government (AU Peace and Security Council Report, 2009). In response, the Sudan People’s Armed Forces and their militia, the Janjaweed, the Sudanese Police Force, the National Intelligence and Security Service, and the Humanitarian Aid Commission led a counter-insurgency against the SLM/A, the JEM, and other armed groups opposing the Government of Sudan, President Al-Bashir’s Government (Christian Science Monitor, 2010).The groups opposed to President Al-Bashir were mostly composed of individuals from the Fur, Masalit, and Zaghawa tribes (http://www.icc-cpi-int/iccdocs/doc/doc639096.pdf).
Although the conflict formally began in 2003, the problems started much earlier. Darfur was once independent but became a part of what was then British Sudan in 1917. The integration led “to the economic and political marginalization of Darfurians.” The airport attack was a response to historic marginalization that has been continued by current and recent governments. For example, in 1980, the government appointed a non-Darfurian to be the Governor of Darfur, causing the Darfurians to fear that their interests would not be represented. Then, in 1994, President Al-Bashir divided Darfur into three states, rendering the Fur tribe minorities in each territory (AU-PSC, 2009). In 1995, the governor of Darfur enacted a reform that shifted the power of the Electoral College in West Darfur so the majority was non-Masalits (http://www.icc-cpi.int/iccdocs/doc/doc639096.pdt). Significantly, this change gave the Masalits’ majority position to non-Masalits, which made it possible for a non-Masalit to become the Sultan of Dar-Masalit and for other tribes to exert more power over the Masalit tribe’s land (AU-PSC, 2009).
Once the war stated, the military, backed by President Al-Bashir’s government, burnt hundreds of villages and displaced over one million people. The UN estimates the death toll to be about 300,000 individuals. Some sources report that a minimum of 35,000 civilians were killed between 2003 and 2004 by the US, China, and others (Citizens for Global Solutions, 2011). One reason for the criticism was that there was fear the indictment would cause the government to be less likely to cooperate with peace agreements. Although the referendum and independence succeeded, there was extreme concern that the arrest warrant would hinder the progress. A second concern over the indictment is that the ICC indicted a head of state, which interferes with Sudan’s national sovereignty. Under this argument, President Al-Bashir should be immune under Article 98(1) of the Rome Statute (AU High-Level Panel Report, 2009). The indictment has been called an attack by the West against African, as the ICC has investigated situations in Africa only. For example, AU Chairman Jean Ping said “it seems African has become a laboratory to test the new international law” (http://news.bbc.co.uk/2/hi/africa/7639046.stm). However, there are also individuals that believe that immunity for ahead of state does not apply to core crimes (Murithi, 2013).
The AU also had reservations over the ICC’s capability to handle a situation like Darfur because the ICC cannot conduct a wide enough prosecution in order to truly bring justice to the region (AU-PSC, 2009). The ICC is seen to be slow, generally prosecutes each individual separately, and is concerned with international implications (AU-PSC, 2009). Therefore, the ICC will not prosecute every responsible individual and may prosecute some that should not be prosecuted. Thus, many of those criminally responsible will go unpunished. Instead, the AU suggested that the proper remedy is to strengthen Sudan’s legal system internally (The Guardian, 2010). It recommends that the Sudan “draw upon an established and diverse legal heritage, encompassing common law, customary and Islamic laws” to bring the region the justice, peace, and healing that it needs.
Thus, on July 21, 2008, the AU Peace and Security Council requested that the UN Security Council defer the prosecution against President Al-Bashir for twelve months pursuant to Article 16 of the Rome Statute (BBC, 2010). The Security Council was not responsive to the request, as Moreno-Ocampo proceeded with the prosecution (Barness, 2011).
Disheartened and concerned over the lack of action from the Security Council, the AU issued a decision to all of its member states regarding the indictment of President Al-Bashir in July 2009 (ICC don. Assembly/AU/13(X111), July 8, 2009). The AU decision expressed regrets that the request for deferral was ignored and asked the UN Security Council to reconsider its decision. The AU thus decided that, pursuant to Article 98 of the Rome Statute, AU member states would not cooperate with the arrest and surrender of President Al-Bashir. Against this background, this study examines the Africa Union and the politics of the International Criminal Court (ICC) with specific focus on the case against Omar Al-Bashir, President of Sudan.
1.2. Statement of the Problem
In mid-July 2008, the Chief Prosecutor of the International Criminal Court requested the indictment of President Omar Al-Bashir of Sudan on charges of genocide, crimes against humanity, and war crimes committed in Darfur. The indictment, if confirmed by the pre-trial chamber, would represent the first time the ICC had directly charged a sitting Head of State. Not surprisingly, it provoked immediate reaction from every corner: human rights activists hailed the move as a bold and momentous step; the Sudanese Government predictably denounced the indictment as neocolonialism and a western-backed conspiracy; diplomats attempting to broker peace fretted that it would derail efforts to revive the Darfur peace process; and humanitarian workers on the ground in Darfur feared for the worst. Both the nature and the timing of Ocampo’s indictment re-energized the broader debate over the pursuit of peace versus that justice in situations of ongoing conflict around the world. It was wondered whether this would “be a historic victory for human rights… or a tragedy, a clash between the needs for justice and for peace, which will send Sudan into a vortex of turmoil and bloodshed” (de Waal, 2008).
Ocampo’s indictment did not occur in a political vacuum. Diplomats from across the political spectrum argued that an indictment of Al-Bashir would be counterproductive to achieving peace in Sudan and could jeopardize the fragile comprehensive peace agreement that ended the 20 year north-south conflict. Whatever leverage could be derived from an indictment has likely been lost, as the divisions within the international community have only increased since Ocampo filed his charges in July 2008. African states and members of the Arab League have lined up firmly behind Al-Bashir in condemning the indictment, and much of Sudan’s political class, even opponents of the president, feel that Bashir has been unfairly charged.
The 5th June 2008 indictment of the Sudanese President Al-Bashir at the United Nations Security Council by the Chief Prosecutor, Luis Moreno-Ocampo, in which he implicated the Khartoum regime for the Darfur atrocities that the UN estimated, has claimed 300,000 lives, left a lot of issues nebulous. While the prosecutor caught some observers and analysts of the Court off-guard by seeking an ICC warrant for Al-Bashir’s arrest, many human-rights activists have regarded Moreno-Ocampo as too cautious in his approach to states and a far cry from Carla Del Ponte, the crusading former prosecutor of the International Criminal Tribunal for the Former Yugoslavia who forcefully criticized UN inaction in pressing Serbia and Croatia to arrest fugitives. Disappointment centred on Moreno-Ocampo’s decision not to carry out investigations inside Darfur, on his initial reluctance to criticize Khartoum’s non-compliance, and on his 2007 charges against two Sudanese suspects that did not target officials in Al-Bashir’s inner circle.
The Rome Statute defines the ICC’s mandate as to deal with war crimes, atrocities, genocide and crimes against humanity. While many scholars concur that the Sudan violence constituted crimes of immense gravity, there have been opposing schools of thought arguing for and against the prosecution of Al-Bashir, while there was an on-going peace process. In the view of the ICC intervention, it is argued that the court has assumed a victor’s justice approach that could be detrimental to any reconciliation process. The proponents of this claim ascertain that this form of justice further divides society by framing some as violators and others as victims. They lament that a victor’s approach of justice fails to address the root causes of conflict for it is preoccupied with trials and prosecutions (Mani, 2005).
However, the African continent seems to be the only place where leaders have had to be dragged to International Criminal Court for prosecution. The latest is the Kenya President and his Deputy who have been subjected to ridicule and attacks by the International Criminal Court. Thus, this study seeks to answer the following questions:
- Does the politics of the International Criminal Court undermine peace efforts in Sudan?
- Does African Union have the political will to stop the discriminatory treatment of African leaders at the International Criminal Court?
- Does inadequate international support for the International Criminal Court undermine the resolution of the Sudan crisis?
1.3. Objectives of the Study
The study has both broad and specific objectives. The broad objective of the study is to determine how the African Union deals with the Politics of the International Criminal Court, using Sudan as a case study. However, the specific objectives are:
- Establish whether the politics of the International Criminal Court undermined peace efforts in Sudan.
- Examine whether African Union has the political will to stop the discriminatory treatment of African leaders at the International Criminal Court.
- Ascertain whether inadequate international support for the International Criminal Court undermined the resolution of the Sudan crisis.
1.4. Significance of the Study
The study has both theoretical and practical relevance in the African context. The theoretical relevance of the study is that it will be of immense relevance to the issues under discourse. The study will enable the students of Political Science, international relations and politicians and judges to have International Criminal Court experience. At the practical aspect, the study will be a valuable guide to national and international political leaders who may be engaged in international criminal cases to fight justice and inefficient implementation of peace and justice through punitive measures.
For many decades, the study of international criminal tribunals was the jealous preserve of international lawyers. Throughout the Cold War, lawyers kept the discipline of international criminal law alive and political scientists seems to have looked at it some form of irrelevance. When prospects for international criminal justice boomed, international lawyers were also the prime force behind the promotion and study of the newly created international criminal tribunals. This study is important for political scientists and international relations students as the international criminal justice operates in an environment that was imbued with politics. The study will offer in-depth and authoritative analyses of each of the many issues involving the court’s implementation and development. It will also assess the policy implications and central political challenges facing the ICC, and shed light on such important political questions as the implications of indictments and the political constraints imposed by the major powers.