The Guardian is reporting today that the UK, France, China and Russia will be asking the UN Security Council to adopt a resolution blocking the International Criminal Court from continuing the effort to prosecute Sudanese President al-Bashir for Genocide in Darfur. See:
http://www.guardian.co.uk/world/2008/sep/14/sudan.humanrights
The United States has not yet decided whether to support such a resolution, and as a Permanent Member of the Council (and the first country to label the situation in Darfur as genocide) it could exercise its veto, thereby allowing the International Criminal Court arrest warrant to issue without political interference.
It will be absolutely tragic if the United States and the other members of the Security Council give in to al-Bashir’s blackmail, adopting a resolution ordering the ICC to defer its prosecution of the indicted genocidaire and war criminal in return for his pledge to cooperate with the UN and OAU. If history has taught us anything, it is that the international community cannot rely on indicted war criminals to serve as reliable guarantors of peace. Like Slobodan Milosevic, Radavan Karadzic, and Charles Taylor, al-Bashir cannot be trusted to follow through with his pledges of cooperation. Al-Bashir has and will continue to direct a genocidal policy while under  the pretense of cooperation. Nothing will actually be gained by quashing the ICC indictment, and so much will be lost.
A Security Council resolution ordering the ICC to defer its prosecution of al-Bashir would be a serious blow to the  credibility and legitimacy of the ICC and the growing trend toward international accountability. It will return the world to a cynical age in which future warlords, parroting Hitler’s  infamous words about the Armenians, will be able to say to their followers, “Who after all today remembers the fate of the Darfurians.”  Â
Comment #1
Matt said,
Members of the UN Security Council need to focus their efforts toward the goal of making the International Criminal Court an effective and legitimate international court. If this can be accomplished, the claims of defendants that courts are unfairly against them will cease to be even remotely believable. Currently the Security Council is not functioning as a unit to legitimize the ICC as the true international criminal court, which has in turn left questions regarding whether international law can be applied, and the true power of international law. The latest issues with the ICC involve Sudan and Gaza, both areas which could have a significant impact on the future of international criminal law and the authority of the ICC.
Individual members of the UN Security Council have already acted against a prosecution in Sudan for a number of reasons, including opposition to the ICC and what can only be described as appeasement. The United States abstained from voting for UN resolution 1593 which referred the Sudan situation to the Prosecutor of the ICC. See UN Press Release at http://www.un.org/News/Press/docs/2005/sc8351.doc.htm. That vote occurred during the Bush administration, and there is the belief that the Obama administration will be more supportive of the ICC. See Jurist at http://jurist.law.pitt.edu/forumy/2009/02/snafu-at-au-is-regionalism-iccs-biggest.php. The issue is not whether the ICC should have jurisdiction over the situation, they do because of the Rome Statute gives them jurisdiction over the crimes against humanity committed by al-Bashir, but whether they will be fully supported by the UN members and the world as a whole. See The Rome Statute at http://untreaty.un.org/cod/icc/statute/romefra.htm. Britain has supported not issuing an arrest warrant for al-Bashir on the grounds that there could be an increase in violence if the warrant is issued. See Guardian.co.uk at http://www.guardian.co.uk/world/2008/sep/14/sudan.humanrights. This form of appeasement is highly unlikely to be effective, as history has shown us. After Saddam Hussein was sentenced to death, there was a fear that his supporters would wreak havoc if he were executed. While there is still significant unrest in the country it is not tied into the execution, and the country seems to have moved on. See Newton and Scharf, Enemy of the State at 206. In order to establish a court of international law that will truly be effective, larger nations such as the United States and Great Britain need to support it along with the rest of the international community.
Sudan has multiple obstacles that could prevent the prosecution of the Sudanese President Omar al-Bashir, including efforts by the African Union (AU) to persuade members of the UN Security Council to postpone the prosecution, and the opposition by a number of the UN Security Council members to prosecution. The AU objections to the ICC prosecution seem to be based on the current makeup of the ICC docket, which is comprised entirely of cases involving African countries. See Jurist, at http://jurist.law.pitt.edu/forumy/2009/02/snafu-at-au-is-regionalism-iccs-biggest.php. This is a concern, and it is clear why the AU feels there is a regional bias involving the ICC. However, this is not reason enough to prevent the prosecution of a criminal such as al-Bashir who is responsible for over 2.5 million deaths, 7 million homeless, and 1,500 villages destroyed. See Time.com at http://www.time.com/time/specials/2007/time100/article/0,28804,1595326_1615513_1614671,00.html. While the members of the UN need to address the issues of the ICC focusing solely on Africa, the fundamental principles of prosecuting al-Bashir are important enough to continue with a prosecution.
The ICC has recently looked to investigate Israeli-Palestinian conflict in Gaza. This would work to alleviate the AU fears of an African bias, but has many issues in need of resolution before the ICC could have authority, including whether they could exercise authority over Palestine which is not recognized as a sovereign state. See LATimes at http://www.latimes.com/news/nationworld/world/la-fg-court-palestinians5-2009feb05,0,6059347.story. If the ICC were able to exercise its authority over this situation, it would be a great step toward legitimizing a truly international court that would be the basis for any and all international criminal trials.
February 9, 2009 at 1:19 am