The ICC v. Sudanese Stability: How the results of the South Sudan Referendum might jeopardize the possibility of an international criminal jurisdiction

With the results of the referendum in South Sudan producing an overwhelming vote for independence, the prospect of Omar Hassan al-Bashir being tried at the International Criminal Court (ICC) have become increasingly slim. The indictment and warrant issued by chief prosecutor Luis Moreno-Ocampo in March 2009 (and a subsequent one filed in June 2010) was always going to be hard to enforce; Al-Bashir continued to travel unimpeded to neighboring African countries, some signatories to the Rome Convention with an accompanying obligation to arrest and extradite the President of Sudan for the crimes committed under his watch in Darfur. The international community seemed to  forget the outstanding warrant as the situation in Darfur improved, turning even more of a blind eye  in the run-up to this month’s referendum in the south of the country. The US and its allies were so desperate for the Southern referendum to occur peacefully that it eased its position towards the Sudanese government. The imminent creation of the 193^rd state might further hinder attempts to enforce the warrant, with the distinct possibility that al-Bashir’s indictment gets withdrawn. At the very least, the Khartoum’s government peaceful approval of the south’s secession should ensure that no country will dare jeopardize this momentous occasion by enforcing Moreno-Ocampo’s attempt at justice for the thousands of victims in Darfur. The ICC would indeed then suffer a fatal blow to its legitimacy.

The USA has played an integral role in further loosening any sort of pressure that still existed on al-Bashir to surrender to the ICC. By sending numerous envoys to Khartoum and offering to normalise relations with his government, the USA is seemingly sacrificing its long-term goal of creating an international jurisdiction against war crimes and crimes against humanity for more short-term political gains in South Sudan. Further Washington carrots have been said to include cancelling part of Sudan’s foreign debt, lifting sanctions and removing the country off the list of terrorism state-sponsors. While pragmatists/realists might conclude that the hereto now smoothness of South Sudan’s referendum, I strongly believe that al-Bashir has yet to play his last cards. This fear especially applies to the final drawing of boundaries and over control of the oil-rich province of Abyei that spans the North-South division line. More importantly,this normalisation of relations with the Khartoum government is an undeniable blow to the legitimacy of the ICC, and will surely restrict its ability to pursue international justice. This decade old institution has already been extremely limited in its success, and another example of political goals trumping justice will surely doom the ICC to  future irrelevancy. Events in neighbouring Kenya also demonstrate the lack of political will to prosecute powerful political figures like al-Bashir.

A signatory to the Rome Convention and therefore one of the countries mentioned above, Kenya received President al-Bashir as a guest for the signing of its new constitution on August 27, 2010. Not only did the Kenyan government fail to arrest al-Bashir as per their legal obligations, but they even formally invited him to attend the official ceremony.  More recently, the ICC indicted six Kenyan citizens on December 26^th, 2010 in response to the bloody events of late 2007, when a disputed election led to the ethnic conflict resulting in the death of over a thousand people. Top politicians are targeted but have yet to report to the Hague primarily, with the Kenyan authorities under a legal conundrum due to an African Union resolution passed in July 2009 instructing its members not to cooperate with the Hague institution. Al-Bashir’s invitation fell under this protection. Thus, the Kenyan government faces legal obligations under two conflicting treaties, and its response to the ICC warrants should also help determine the future effectiveness of the Court in the Hague.

The ICC is a crucial stand-point in its short history. Its failure to pursue more than few cases, and more importantly to actually prosecute the individuals that it has targeted suggests that it faces certain incurable problems. Without going into a lengthy discussion of international politics and law, the inability to enforce its supposed global jurisdiction stems from an inherent dilemma: states still hold coercive powers and do not feel constrained by an inconsequential institution in the Netherlands. Political goals continue to trump international justice, and the casualties of the six-year conflict in Darfur will unfortunately continue to find out that an international jurisdiction for crimes against humanity and war crimes remains fiction.

Share/Bookmark