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ICC Seeks New Sudan Arrest Warrant

Prosecutor ratchets up pressure on Khartoum, but will it make any difference?
By Blake Evans-Pritchard

A request by prosecutors at the International Criminal Court, ICC, for a seventh Sudanese arrest warrant is being seen as an attempt to put Darfur back on the international community’s agenda ahead of his biannual briefing before the United Nations Security Council on December 15. But some wonder what difference the move will make, given that no one from the Sudanese government has yet appeared in The Hague.

ICC prosecutor Luis Moreno-Ocampo requested the arrest warrant on December 2, issuing a statement that Abdelrahim Hussein, currently Sudan’s defence minister, “played a central role in coordinating the crimes, including in recruiting, mobilising, funding, arming, training and the deployment of the [janjaweed militia] as part of the Government of Sudan forces, with the knowledge that these forces would commit the crimes.”

Following the request, it is for ICC judges to decide whether there is enough evidence to issue a formal arrest warrant.

The ICC has so far issued six arrest warrants in connection with alleged crimes committed in Darfur. The three commanders of rebel forces who were indicted have appeared before the ICC voluntarily, and two of them are now waiting for trial proceedings to begin next year. However, no one from the government side – including Sudanese president Omar al-Bashir – has agreed to appear, arguing that the court does not have any jurisdiction in Sudan.

“[The Darfur case] is perhaps of greater value to the ICC than to the people of Sudan,” argues Phil Clark, a long-time court observer and lecturer at the London-based School of Oriental and African Studies, SOAS. “Simply having indictments hasn’t changed the way the conflict has played out. They might have constrained the travel of Bashir and others, but I’m not sure that they have changed what’s happening on the ground, or the behaviour of senior Sudanese officials.”

Not everyone agrees with this assessment, and advocacy groups have positively welcomed the attempt to mount a case against Hussein, who at the time the allegations relate to – 2003 and 2004 – was interior minister and Bashir’s special representative for Darfur.

“I take issue with the suggestion that there is no point to arresting Hussein now,” Elise Keppler, senior counsel with the international justice programme of the New York-based advocacy group Human Rights Watch. “If this guy is implicated in horrific crimes, then putting out an arrest warrant sends a clear signal about the need for perpetrators to be held to account for their actions. An arrest might not happen overnight, but eventually it will happen. We mustn’t lose sight of that.”

Mark Quarterman, research director at the Enough Project, which campaigns against genocide around the world, adds that the very public nature of these arrest warrants reminds ICC member states of their obligation to apprehend anyone indicted by the court who sets foot on their territory.

Over the past year, Bashir has defied the ICC by making some high-profile visits to member states including Kenya, Chad and most recently Malawi.

Some experts are asking why Hussein was not included in the earlier request for arrest warrants.

William Schabas, professor of law at Middlesex University in London, describes the ICC’s approach to Darfur as “incoherent” and raises the question of why the accusation of genocide, with which Bashir is charged does not feature in the arrest warrant request for Hussein.

“ICC judges have already agreed that [there are grounds to believe] the military and political leadership of Sudan committed genocide in Darfur, and that this continued [after Hussein became defence minister],” said Schabas. “If this [charge] worked for the president, then why doesn’t it work for the minister of defence?”

Schabas admits that he does not wholeheartedly agree with the assessment that events in Darfur amounted to genocide, but maintains that if the prosecutor is prepared to use this term, he should at least be consistent.

BROADENING THE ICC’S MANDATE

Although the UN has only given the ICC a mandate to investigate crimes within Darfur, some are hoping that an indictment of Hussein will throw the spotlight on crimes that have taken place elsewhere in the country.

“Hussein is responsible for virtually the same crimes in South Kordofan and Blue Nile State, as well as in Abyei and some of the border areas,” Quarterman said. “They follow the Darfur pattern of aerial bombardment, destruction of villages and arming proxy militias to terrorise and kill people.”

Quarterman believes crimes in these regions are still taking place, and that Hussein as defence minister is directly responsible for them. He argues that close scrutiny of abuses in these areas could deter future atrocities.

According to Time magazine, a recent internal memo from the ICC indicates that the court is currently investigating crimes in South Sudan.

The ICC did not respond to an invitation for comment on this matter, but Quarterman suggested that any investigation might simply be part of the probe into Darfur.

In order for the ICC to open a formal investigation into crimes outside Darfur, the UN Security Council would have to issue a new resolution. That is something the Enough Project is pushing for. One obstacle to the UN extending the ICC’s mandate any time soon is the fact that two of the five permanent veto-wielding members – China and Russia – openly oppose the court’s involvement in Sudan.

Nevertheless, as Quarterman points out, the Darfur case was referred to the ICC in 2005 despite China’s objections.

“The Darfur referral was a question of acquiescence rather than approval,” he said. “There had been so much pressure over the years, and so much attention drawn to the question of genocide in Darfur, that China found it very hard to isolate itself by using its veto. Vetoes are not used indiscriminately. The United States has been willing to isolate itself over Israel, but China and Russia rarely do.”

Although the UN does not look likely to expand the ICC’s mandate on Sudan any time soon, Quarterman does not rule out the possibility that it might take a firmer line in the years ahead. He believes this is a message that should go out to anyone who might commit atrocities elsewhere in Sudan in the future.

WILL SOUTH SUDAN INVITE ICC INVESTIGATIONS?

Another way that the ICC could investigate crimes in other regions of Sudan is if the newly-independent state of South Sudan were to sign the court’s founding treaty, the Rome Statute. If that happened, the ICC would have jurisdiction over crimes in South Sudan. But it is far from clear how this would work, or how far back in time an ICC investigation would be able to go.

Edmund Yakani, program coordinator for the Community Empowerment for Progress Organisation in the South Sudanese capital Juba, thinks it would be in the new state’s interests to join the ICC.

“We are still in a conflict zone, and joining the ICC would deter those who have a political agenda from motivating forces to fight each other. Our experience with Sudan helps reinforce the importance of justice in our country,” he said.

There have been reports recently of a breakaway militia group, led by former rebel leader George Athor, launching attacks on villages in Jonglei state of South Sudan. Yakani hopes ICC membership would act as a deterrent to this kind of thing.

Yakani says members of the South Sudanese government are discussing ICC membership, but questions whether the political will is really there. He says that one constraining is the fear that should South Sudan sign up to the ICC, rebel fighters turned politicians and officials could face questions about abuses committed in the past conflict.

Clark, from SOAS, says such actions would certainly be in line with the direction that the ICC has been heading in over the past few years.

“The prosecutor faced a lot of criticism in the Uganda and Congo cases for only going after one side,” he said. “In Sudan and Kenya, we have seen him try to be more even-handed. A similar idea of even-handedness is emerging with Côte d’Ivoire [Ivory Coast], where he says he’ll investigate both sides. This will almost certainly come into play in the South, and Juba’s response to this might be to ignore ICC membership altogether.”

But to what extent would the ICC be able to investigate crimes of the past in South Sudan? The Rome Statute makes it clear that the ICC can only investigate crimes that occurred within a member state after its accession date. However, Kevin Jon Heller, a senior lecturer at Melbourne Law School in Australia, points out that this can be subject to an exception if a newly-ratifying state opts to accept the court’s jurisdiction retroactively.

“It’s true that the two provisions are not the picture of clarity, but it is well-established that [the statute allows this], as the Cote d’Ivoire referral indicates. The government accepted jurisdiction from September 19, 2002, even though it had filed its declaration on April 18, 2003,” Heller said.

Another question is whether the ICC would be able to investigate crimes in South Sudan that took place before the country gained independence in July 2011 – and that is much less easy to answer. It is far from certain that Juba’s political elite would be prepared to give the ICC the scope to look too far into the past.

Blake Evans-Pritchard is an IWPR trainer and editor based in The Hague.