March 6, 2009

HARRISONBURG—In an invited commentary today for the JURIST news and legal research service, Dr. J. Peter Pham, director of the Nelson Institute for International and Public Affairs at James Madison University, explores some of the legal and political implications of the decision earlier this week by the International Criminal Court (ICC) to issue an arrest warrant for Sudanese President Umar Hassan al-Bashir on charges of war crimes and crimes against humanity for his role in the crisis in Darfur.

Observing that the decision has divided the international community as well as individuals and groups between “those who applauded the ICC’s first-ever indictment of a sitting head of state as a significant advance in realizing the vision of the tribunal’s architects to put an end to impunity for the perpetrators of the most serious crimes” and “those who contend that the Court's action will not only set back efforts to resolve Sudan's multiple conflicts, but will endanger the United Nations peacekeeping forces presently in the country as well as the humanitarian organizations relieving the suffering of the very peoples on whose behalf the ICC acted,” Dr. Pham argues that while it is “inconceivable” that the Sudanese leader “will simply turn himself in at The Hague anytime soon,” nonetheless “cumulatively ICC prosecutor Luis Moreno-Ocampo’s public application for a warrant last year and the Pre-Trial Chamber’s decision this week to accede to his motion on all counts except the three concerning the crime of genocide …represents a major turning point that shifts the dynamics on the ground in Sudan and, ultimately, opens the way for the eventual execution of the arrest order.” Specifically, he contends:

First, unless the legal proceedings in Prosecutor v. Al Bashir are suspended…the Sudanese ruler will inevitably become progressively isolated. Second, while Al Bashir may momentarily be able to rally support among his core domestic constituencies by appealing to nationalism, his authority will weaken if he is increasingly marginalized internationally. Third, the arrest warrant accelerates the ongoing disintegration of the Sudanese state…forcing whatever regime elements eventually succeed Al Bashir to seek a genuine settlement of Sudan's conflicts. Fourth, if only to escape the opprobrium which Al Bashir has brought on the Sudanese state, almost any future government in Khartoum will likely prove more cooperative with the ICC, especially with respect to the arrest warrant issued by the court in 2007 for the current minister of state for humanitarian affairs, Ahmad Muhammad Harun, and janjaweed leader Ali Muhammad Al Abd-Al-Rahman, a.k.a. Ali Kushayb…The trial of these two mid-level figures would, in turn, not only contribute to the ICC’s own progress as a working tribunal, but also to the further laying of the evidentiary groundwork for the eventual prosecution of those with even greater responsibility for the terrible crimes which have taken place in Darfur these past six years.

Consequently, Dr. Pham concludes:

In short, while the judges who authorized the arrest warrant for Al Bashir may not have envisioned it in this perspective, theirs was not only a legal action with normative force, but also a strategic move with profound geopolitical implications. And because of the particular realities on the ground in Sudan, it might well prove that international human rights law and realpolitik converge in this case to give both Al Bashir and his victims their day in court.

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To read the full text of the article, “ICC Arrest Warrant for Sudan’s Al Bashir Has Both Humanitarian and Strategic Consequences,” click here.