Five years ago this month, the ICC issued its first arrest warrant for a sitting head of state. The continuing evasion of justice by Sudanese President Omar Al-Bashir, reported to be attending a summit in Kuwait this week, adds insult to injury for victims of the conflict in Darfur.
Lack of cooperation
The ICC’s investigation in Darfur opened in 2005 following a referral by the UN Security Council. There are four ongoing cases, with five public arrest warrants having been issued. None have been executed.
In March 2009, ICC pre-trial judges granted the prosecutor’s request for an arrest warrant for Al-Bashir for crimes against humanity and war crimes allegedly committed in Darfur in the preceding five years. A second arrest warrant was issued the following year for the charge of genocide.
The Sudanese government has consistently refused to cooperate, and has attempted to undermine regional support for the Court through the African Union (AU).
Security Council failing victims
In a statement to the Security Council last December, ICC Prosecutor Fatou Bensouda faulted Council members for failing to take steps to ensure the arrest of those accused of serious crimes in the region, warning that Darfur’s victims are losing hope that justice will be done.
The prosecutor also described ongoing crimes in Darfur, including sexual and gender-based crimes, and condemned attacks on UN peacekeepers.
On 4 March, the fifth anniversary the first Al-Bashir arrest warrant, the International Justice Project and 30 other civil society organizations under the umbrella of the BashirWatch Coalition called on the Security Council and member states to fulfill their legal and moral obligations in arresting the fugitive president.
The groups alleged that since 2003, more than 300,000 have been killed, thousands of villages deliberately destroyed, and at least 3 million civilians forcibly displaced in Darfur alone. Millions more have been allegedly targeted in South Kordofan, Blue Nile, Abyei, and throughout the country.
They highlighted that the failure to hold Al-Bashir accountable has devastating effects inside Sudan and sends the wrong message to others committing extreme violence throughout the world.
DRC commitment to justice under question
Since the arrest warrants, Al-Bashir’s travels have been largely restricted to non-ICC member states in Africa.
However, last year he paid a flying visit to Nigeria, a state party to the Rome Statute. Civil society there applied to the high court for a warrant for his arrest, leading to his swift return to Khartoum.
Then last month, Al-Bashir traveled unimpeded to the Democratic Republic of Congo (DRC) for a summit of the Common Market of East and Southern Africa (COMESA).
Like all ICC members, the DRC is legally obliged to arrest and hand over fugitives wanted by the Court. Its failure to do so has raised questions about the government’s commitment to justice at a time of increasing ICC focus in the country’s troubled eastern region.
In 2004, the DRC referred itself to the ICC for investigation, and has since assisted in a number of cases, arresting and delivering three suspects to the Court. The Court’s first two convictions involved Congolese rebel leaders Thomas Lubanga and Germain Katanga. Another, Bosco Ntaganda, is in custody awaiting a judge’s decision on whether his case will move to trial.
As news of the visit was breaking, those calling on the DRC government to live up to its Rome Statue obligations and demonstrate its commitment to victims in Darfur included: President of Assembly State Parties Tiina Intelmann; High Representative to the European External Action Service Catherine Ashton; Costa Rica; the Coalition; 90 DRC civil society organizations; Amnesty International; No Peace Without Justice; Ligue des Electeurs and the International Federation for Human Rights; African Centre for Justice and Peace Studies; Parliamentarians for Global Action; The League for Peace, Human Rights and Justice; International Justice Centre; and Human Rights Watch.
Following the visit, the ICC registrar wrote to the Congolese authorities reminding them of their obligations under the Rome Statute and asking for an explanation. They responded that the difficult political situation led them to act in a manner that they felt was most compatible under the Rome Statute while also allowing them to respect their commitments to the AU and COMESA.
Time for moral leadership
With reports of renewed violence in Darfur and elsewhere in the country, the continuing suffering of victims in Darfur and elsewhere, it is more important than ever that ICC members demonstrate moral leadership by living up to their clear obligations under the Rome Statute. The Security Council can do similarly by ensuring that the Court has the cooperation necessary to fulfill the request for assistance the international community had made of it almost 10 years ago.
Have your say – What do you think can be done to ensure that the international community provides justice to victims in Darfur?
Visit our Darfur webpage for more information.