A Waltz with al-Bashir

‘Ten years ago, I was in favour of an international criminal court. I was naive’

International Jurisprudence Justice

It could take two months or two years, but he will face justice.” So said the prosecutor of the International Criminal Court, speaking after he had been granted a warrant to arrest the president of Sudan.

Don’t hold your breath. Past experience shows how much Luis Moreno-Ocampo, the prosecutor, is prone to wishful thinking. That was confirmed by the “pre-trial chamber” of three judges who granted the warrant for Omar al-Bashir on 4 March. Although they decided that the president could be arrested for crimes against humanity and war crimes in Darfur, the majority threw out Moreno-Ocampo’s application to have Bashir arrested for genocide-the most serious crime that the court may try.

An intention to wipe out specific African tribes was not the only inference that could be drawn from the evidence against Bashir, the judges concluded. “As a result, the majority finds that the materials provided by the prosecution…fail to provide reasonable grounds to believe that the government of Sudan acted with specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups.”

You may think this does not matter very much. The judges did not rule out issuing arrest warrants for genocide if further information came to light. Five counts of crimes against humanity-murder, extermination, forcible transfer, torture and rape-ought to be enough for anyone, not to mention two war crimes, attacking civilians and pillaging. And there may be little chance that Bashir will ever be arrested, let alone tried.

That is not because he is a head of state. When the world’s first permanent international criminal court was set up in 1998 by a treaty known as the Rome Statute, the member states agreed that a defendant’s official capacity would not be a defence. Nor do I say Bashir is unlikely to be arrested because his country is not a party to the Rome Statute. A UN Security Council resolution requires Sudan to co-operate with the court.

I think it is unlikely that Bashir will be arrested because other states have no powers to do so. It is true, of course, that an arrest warrant issued by the court must be enforced by all 108 parties to the Rome Statute. But this does not apply to Bashir while he retains his immunity as a head of state. And if he ever feels he is losing control over his own government, he could take refuge in a country that has not signed up to the court. One of these, incidentally, is the US: expect a diplomatic incident when Bashir insists on attending the UN General Assembly later this year.

It matters that Moreno-Ocampo was not able to establish an arguable case on genocide because it shows what poor judgment he has. Informed observers predicted that the application would be thrown out. Alex de Waal, who has studied human-rights issues in Sudan for 20 years, said last July: “For 19 years, President Bashir has sat on top of a government that has been responsible for incalculable crimes…Two weeks ago, Moreno-Ocampo succeeded in accusing Bashir of the crime for which he is not guilty. That is a remarkable feat.”

But the genocide verdict was only the latest setback for the hapless prosecutor. Just one day before, a separate pre-trial chamber told Moreno-Ocampo it thought that Jean-Pierre Bemba-a former Congolese leader accused of rape, torture and murder in the Central African Republic-had been charged under the wrong section of the Rome Statute. He should have been accused as a military commander, not as an individual. The chamber granted an adjournment so that the prosecutor could try again.

Although Moreno-Ocampo has opened formal investigations into alleged crimes in four African countries since his appointment nearly six years ago, the court’s first trial did not start until earlier this year. The case against Thomas Lubanga, an alleged warlord from the Democratic Republic of Congo accused of conscripting child soldiers, had been “stayed” last summer by the British judge, Sir Adrian Fulford, because potentially exculpatory evidence had not been disclosed to either the court or the defence.

Shortly afterwards, the prosecutor found he could disclose the evidence after all and pronounced himself “highly confident” that Lubanga’s trial would start last September. In fact, it began in January.

Ten years ago, I was all in favour of the fledgling court. In believing that international criminal justice would deter tyranny-or, failing that, punish tyrants-I was as naive as those who thought that the election of Tony Blair in 1997 or Barack Obama in 2009 would avoid war.

Having thought there could be no peace without justice, I now believe there will be no justice without peace.