Articles and Analysies
Why ICC should not Issue Arrest Warrant on Al-Bashir By James Okuk
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Jan 10, 2009 - 8:02:43 AM

Why ICC should not Issue Arrest Warrant on Al-Bashir

By James Okuk

With this article of mine, I would like to shed light for “Peace before Justice.” I will do this in opposition and rejection of the hasty proposals of the International Criminal Court (ICC)  Prosecutor, Luis Moreno-Ocampo, for issuance of an International Arrest Warrant against the sitting president of the Sudan; a possible legal precedent whose repercussions could lead to more evils than good. The ICC Prosecutor has tried his political best and media publicity to abort the opportunity of peace in the Sudan by indicting the Commander-in-Chief of the Sudan Armed Forces and criminalizing him in favour of Darfuris rebel movements and developed countries that are against the government of the Sudan . This Argentinean judge seems to ignore the fact that the Comprehensive Peace Agreement (CPA) shall be defended jointly and fully by both the NCP and the SPLM against any possible ill-motive on Sudan stability. The world shall not accept to endanger or sacrifice the CPA because of the crisis in Darfur ; it is not prudent at all to solve one problem in the expense of a set solution. Thus, Ocampo may get disappointed and pressured to resign his post for having miscalculated his investigations and subjecting the ICC to become the casualty of his imprudence and impatience.

Up to now the Ocampo’s proposal is being studied by the three women judges (Akua Kuenyehia from Ghana , Sylvia Steiner from Brazil and Anita Usacka from Latvia ) in the Pre-trial Chamber I of the ICC compound in The Hague . These women are very tough and competent, not only in legal procedures, but also in jurisprudence and promotion of women well-being. They may shame Ocampo by throwing his application (against the sitting head of the largest African State ) into a dust bin, and tell him to open a new indubitable investigation de novo (if he insists not to forget about it). These tough ladies know that Ocampo has aimed too high and may fail very low sooner or later.

These ladies judges have been scrutinizing seriously the application against H.E. Mr. Al-Bashir; weighing many possibilities in accordance with the dictates of legal wisdom that balances the interests of the victims of the alleged crimes with the reaction of the indicted victimizers. From their professional experience and concern for the wellbeing of the people of the Sudan (especially the women), these ICC judges will know which path to choose from the following options:

1)       Pursuing Peace and Justice at the same time is too heavy and risky to be managed piecemeal in a country that is still characterized by fresh and bitter war memories – both values may be lost at the same time if mismanaged with incompetence.

2)       Prioritizing Justice to Peace is dangerous and elusive for the pursuit of socio-political reconciliation and harmony; and

3)       Delaying Justice for the sake of Peace is the safer way for managing the differences gradually (step by step) especially when the sovereignty and immunity are still dressed on the indicted individual. Though the option of peace-first-justice-next is a tortoise move yet it is a sure race for a lasting victory.

These wise ladies may opt for the third option because they understand that any hasty and impatient application of justice will be useless if it destroys peace in the Sudan and the region. They may tell the Prosecutor to go to hell with his charges and leave the Sudanese president alone in his efforts to oversee the stability in all parts of the Sudan within the spirit of SPLM-NCP partnership, and with the help of the UN and AU peacekeeping missions and other friendly bilateral observers. These women judges are also strong gender activists. For instance, Kuenyehia (who is also the presiding judge of the chamber) has written extensively on gender law and rights of women in Africa . She provided consultancy services to the World Health Organization (WHO) on “Women’s Health and Violence” in 1998. Also she presented a strong paper titled “Gender Challenges of the Rome Statute” at Nottingham University in 2004. The other two judges, Steiner and Usacka, have also written on topics of violence against women.

All these woman judges understand that if total chaos broke out in Darfur and in other parts of the Sudan as a result of Ocampo’s disturbance of the current tranquility in the country, it will be the Sudanese women who shall suffer most. The angry supporters of Mr. Al-Bashir (after expelling the UN and AU forces from the country) may find a lawless environment to rape the females (male shall not be raped because Sudanese hate homosexuality) and leave so many of them as widows who are burdened with care of the orphans and the wounded. The International Community shall only repeat their famous say (as they are used to) after things have fallen apart in the Sudan : “we are so sorry for what happened and we hope this will never be repeated again in the history of humankind. There is undeniable evidence that so many atrocities have been committed repeatedly right in the face of the International Community, especially when they failed to work together in coordination with the government of the country of their mission.

Also it is known in the law studies that the judges give verdicts on the already committed and proven crimes. They do not give their judgment on the ‘would-be-committed’ or doubtful crimes. For example, the law does not condemn conclusively a person for an intended murder if he/she did not go out to kill and leave somebody or some people dead beyond reasonable doubt. In other words, the law does not regard somebody who has been threatened with death as a dead person. That is why the deterrence aspect of the law has been falsified not to be justice at all; it is only a threat and pressure on the individuals or communities who may intent to do criminal acts but have not done it yet. The deterrence does not work for the accused or the convicted criminals who are courageous and mindless of the bad consequences or accountability for their heinous acts. This deterrent aspect of the international law is what the USA , France and UK is trying to use as a pressure tool on the NCP regime of the Sudan . This may imply that the ICC no longer looks like an institution of Justice but a ‘Political Tool’ used by world powers against weak developing countries, especially in Africa (like the Sudan).

Ocampo and his Franco-Anglo-American friends have failed to grasp that the NCP cadres work best under the pressure because this unite them to move quickly and turn every stone to their side. For example, up to now their security agents work very closely with the American CIA. The NCP got onto the pyramid of decision-making in the Sudan through a crisis. The internal war, the bilateral sanctions and international threats have given these military Islamic juntas more strength than weakness. If the world wants to neutralize the NCP and distance them from power in the Sudan , it should do this by trapping them into a peaceful and liberal environment rather than pushing them into a tide corner of justice where they are very professional in jumping out like “cornered cats.” Even if Ocampo’s application goes through in the ICC Pre-trial Chamber, the NCP cadres will reduce the issued arrest warrant into a dead letter because no country will risk to tie the bell of international justice on the neck of the big dangerous cat of the Sudan. Al-Bashir will continue to be Al-Bashir with Chine and Russia defending him from his backyard. Nothing is going to happen apart from media noises and political statements.

Ocampo seems to have miscalculated his political pressure on the top official of the government of the Sudan , thinking that he is doing the right thing to stop the American defined controversial genocide in Darfur . If Ocampo’s claim of genocide is a past act (of killing 350,000) rather than present activity or future intent, then he should go ahead to indict not only President Al-Bashir but also whoever was a President of the Sudan or leader of a rebel movement during the time of war in the South. Whoever was a C-in-C of an organized armed force who killed the same number of people or more in other parts of the Sudan should be accounted for the same statistics of dead bodies. History records that the war in the South cost 2,000,000 or more lives until 2005. Should Sadiq El Mahadi be indicted for his share in these killings when he was in the same office before Al-Bashir’s group overthrew him militarily? Or are the lives of these two millions dead southerners valueless because they are not favorites Zaghawa, Fur or Masalit ethnic groups of Ocampo’s concern?

If the sitting president of the Sudan is criminalized by the ICC at this moment when the Sudanese and the international community is searching for a peaceful settlement of Darfur crisis, then it will be illogical to tell Al-Bashir to resolve the problem of this region of the Sudan. A criminal is not expected to be a peace-maker because he is supposed to be locked up behind criminal bars. Therefore, criminalizing Al-Bashir while he is still in power is like telling him not to be a peace-maker. If the UN is really built fundamentally on the value of “peace in the world,” then it should stand with somebody who turns out to be a peace-maker even if he was a warmonger. The steps that have been taken by Al-Bashir so far in the path of peace-making in the Sudan are good and should be enhanced further until Darfur is back to its dignity.

So far it is known that the CPA is only owned by the political parties and people who believe in its value. It is not every Sudanese or every foreigner who is in love with this document. The JEM, the SLM, the Communist, the Umma Party, the Popular Congress, and the etc, do not feel good about the existence of the CPA and are ready to spoil it if they get a chance to enter the Gordon Palace in Khartoum by any means (including the ICC criminology means). It is known that the CPA almost collapsed after the news of the unexpected departure of the unforgettable Dr. John Garang from the mortal world when he boarded the evil Ugandan Presidential Chopper, which took him to the immortal realm of no-return, leaving his scattered burnt body to be put in state casket covered with SPLM Flag of Honor (the flag of Sudan was thrown away later) and laid to rest in his mausoleum near Southern Sudan Parliament in Juba. The whole world had to run up and down to get the Lioness Rebecca Nyadeng, and use her courage of ‘no-tears-for-death-of-my-husband’ to convince the mourners that they should get calm and refrain from returning to war and chaos because their beloved hero is still alive in the CPA. Not only this, but the Lioness said clearly that she will not mourn nor avenge for the loss as long as the CPA remains alive and kicking. Indeed, the people got calmed and allowed Dr. Garang to be alive up to now through the CPA whose 4th Anniversary has been celebrated in Malakal in the presence of H.E. Al-Bashir and H.E. Salva Kiir on 9th January, 2009. The Garang’s case is a lively lesson which should not be repeated so easily in the form of the current case of the ICC Prosecutor with Mr. President Al-Bashir. We don’t want again any burnings and killings in Khartoum or any part of the Sudan as a result of the ICC action on the sitting President of the Sudan.

Just to calculate the cost of justice without putting due consideration to peace: What has the previous “Regime Changes” brought to Sudan apart from more chaos and suffering of the innocent people? What liberation has the USA and UK justice brought to Iraq after hanging Saddam Hussein to death? What is known up to now from their acts is that these developed countries have provoked terrorism in the World (the current tactic of which is shoe throwing at hated presidents like George W. Bush) and are unable to control it. Their Technology of Intelligence and Hard Ware of War has been defeated by the cleverest Osama Bin Laden. The unjust Iraq during the time of Saddam Hussein’s Regime is far better and peaceful than the invaded Iraq under Bush’s administration. They eliminated Hussein into the land of the dead in the name of double standard justice, and spoiled the peace of Iraqis by setting Iraq to fire of chaos. God forbids the recurrent of this situation in the Sudan ; given the history that the Islamist terrorist, Bin Laden and others have been close friends of the NCP regime and have trained many Sudanese terrorists who could replicate the current Iraq in the Sudan if an attempt is made to arrest and prosecute their favourite President Al-Bashir!

James Okuk is a concerned Southerner and a PhD student in University of Nairobi . He can be reached at [email protected]


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