Africa Program Director, International Center for Transitional Justice
“Is a Warrant Against Bashir a Warrant Against Africa?”
When the treaty that helped create the International Criminal Court (ICC) was signed 11 years ago, human rights defenders celebrated the signing as a colossal achievement. For the first time, the world would have a permanent, independent criminal court that could bring perpetrators of some of the world’s worst crimes to justice.
Today the court faces attacks from all sides. Critics have accused it of being reckless, unaccountable and unfairly focused on prosecuting African leaders. The sharpest controversy surrounds the ICC prosecutor’s case against Sudanese President Omar Al-Bashir for alleged crimes against humanity and war crimes in Darfur.
The court has stumbled several times, but much criticism of it is based on misconceptions about the scope of its powers and the origins of the cases it is pursuing — including its case against the Sudanese president.
Critics note that all of the ICC’s active cases involve four African countries: the Central African Republic, the Democratic Republic of Congo, Uganda and Sudan.
With the exception of Sudan, however, all of those countries asked the court to intervene and, in fact, helped create the ICC by signing the 1998 Rome Treaty that led to its founding. The treaty defines the ICC as a court of last resort: It is meant to intervene only in cases when domestic courts cannot deliver justice for massive human rights crimes. The governments of the Central African Republic, the Democratic Republic of Congo and Uganda judged that this was the case in their countries, and they appealed to the ICC for help.
The ICC’s investigation of the Sudanese president began not as an arbitrary crusade by the ICC prosecutor, but as a referral from the United Nations Security Council. The council believed that the counterinsurgency campaign in Darfur by Sudanese government forces and allied militias was targeting not only armed insurgents but innocent civilians. The council asked the ICC prosecutor to investigate.
On March 4, 2009, a panel of three ICC judges issued an arrest warrant for Bashir at the prosecutor’s request. The judges found that Bashir had “intentionally directed attacks against an important part of the civilian population of Darfur, Sudan, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians and pillaging their property.”
The warrant in this case was the first the court issued against a serving head of state, and controversy was inevitable. Sudan’s government moved quickly to brand the ICC as anti-African and a threat to peace. It rejected the court’s jurisdiction and mobilized regional support to portray the warrant as a risk to Sudanese stability and the fragile peace process between Khartoum and the largest rebel group. The ICC prosecutor insisted that his office had the evidence to convict Bashir on the charges.
Lost amid the controversy is the fact that since the 1990s, Africa has been at the forefront of global efforts to hold to account perpetrators of major human abuses. Africa championed the cause of accountability through the formation in 1994 of the International Criminal Tribunal for Rwanda — a complement to Rwanda’s own domestic prosecutions for perpetrators of genocide — and African states rallied decisively in the late 1990s to help create the ICC.
It appears that Bashir’s efforts to discredit the ICC have failed, at least for now. On June 8 and 9, 2009, representatives of the 30 African nations that are members of the ICC’s founding treaty met in Addis Ababa, Ethiopia. Supporters of the ICC worried that the meeting would lead to calls for a mass withdrawal from the court by African countries. Instead, the member-states expressed support for the principles of international justice.
The future of the ICC case against Bashir is hard to predict, especially given that the court has no independent police force to execute arrests and relies instead on the law enforcement bodies of member states. Regardless, the indictment of Bashir sends a powerful signal that the era of impunity for gross human rights violations by heads of state — in Africa and around the world — is over.
Suliman Baldo is a widely recognized expert on conflict resolution, emergency relief, development and human rights in Africa and on international advocacy related to these issues. He has worked extensively in the Democratic Republic of Congo, Ethiopia, Eritrea and Sudan and traveled widely throughout the rest of the African continent. In the 1980s and early 1990s, he worked as a lecturer at the University of Khartoum and as a field director for Oxfam America, covering Sudan and the Horn of Africa. Later, he was the founder and director of Al-Fanar Center for Development Services in Khartoum, Sudan. He also spent seven years at Human Rights Watch as a senior researcher in the organization’s Africa division. Most recently, he worked as a senior analyst before becoming the director of the Africa program at the International Crisis Group. Baldo holds a Ph.D. in comparative literature (1982) and a master’s degree in modern literature (1976), both from the University of Dijon in France. He also holds a bachelor’s degree from the University of Khartoum in Sudan.