The Real Reason China Opposes Indicting Bashir

by Kevin Jon Heller

Here’s a surprise — China opposes indicting Bashir:

China’s Foreign Ministry spokesman Liu Jianchao said Beijing maintains friendly relations with Sudan and is deeply concerned and worried about the charges.

He says the situation in the Darfur region is at a sensitive and critical moment. He says China hopes all sides can resolve their differences through consultation and avoid adding complications that could interfere with or harm the atmosphere of cooperation.

[snip]

Liu says China is consulting with other U.N. Security Council members to see if the court could be blocked from issuing a warrant for Mr. Bashir.

It’s particularly ironic that China wants the Security Council to intervene, given the BBC report this week that Beijing has been systematically violating the Council’s arms embargo on Darfur…

The ICC Seeks Regime Change in Sudan

by Julian Ku

I appreciate Kevin’s thoughtful and evenhanded assessment of the ICC Prosecutor’s complex decision to seek the arrest of Sudan’s president.  There are indeed good arguments both for and against the ICC Prosecutor’s move.

I’m torn myself.  I have articulated many times before my skepticism of the ICC’s effectiveness in helping to end the violence or even to bring justice for Darfur. I stand by my view that the ICC referral is basically the Security Council’s effort to deflect further action, and the fact that the ICC investigation cannot in any way help the peace process (at least in the short term).  But I can understand the argument Kevin cites below from "Enough": How could things get any worse?

Still, by indicting a sitting Head of State, the ICC is essentially seeking regime change…

The ICC Is Not the Security Council’s Plaything

by Kevin Jon Heller

The Sudanese government is not very happy with the Prosecutor’s decision to indict Bashir.  Indeed, Sudan’s ambassador to the UN has said that the government intends to ask the Security Council to block the prosecution, describing any attempt to arrest Bashir as "an act of war."

Such belligerent rhetoric is expected from such a belligerent regime.  Many opponents of the Sudanese government, however, have expressed a similar desire for the Security Council to intervene in the situation.  It is thus useful, I think, to remind everyone that the Security Council’s authority over the ICC is actually quite limited.

First, although the Security Council referred the situation in Darfur to the ICC, no provision in the Rome Statute allows the Council to "unrefer" the situation.  And rightfully so: if the Security Council could take a situation away from the ICC whenever it disagreed with the Prosecutor’s investigative strategy or a decision by the Pre-Trial Chamber, the Court would be little more than an arm of the UN, fatally undermining the Court’s independence.

Second, although Article 16 of the Rome Statute permits the Security Council to defer a prosecution, perhaps indefinitely, the Article was designed to make it very difficult for the Council to do so.  Here is the text of the Article:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

The genius of Article 16 is that deferring an investigation or prosecution requires positive action by the Security Council.  In other words, the Council cannot pass a deferral resolution unless there are nine votes in favor of the deferral and none of the permanent members of the Council veto it.  Any member of P-5, therefore, can intervene to prevent the Council from ending an ICC investigation or prosecution.

This limitation on the Security Council’s authority over the ICC was deliberately included in the Rome Statute.  The ILC’s draft Articles would have eliminated the Court’s jurisdiction over any matter that was being considered by the Security Council unless the Council agreed otherwise.  That formulation would have given the P-5 — including ICC opponents like the US, Russia, and China — effective control over the Court’s jurisdiction: to take a situation away from the Court, they would have needed only to add it to the Council’s agenda and then veto any resolution to permit the Court’s investigation to continue.

The Security Council, in short, can prevent the ICC from prosecuting Bashir.  But it will only be able to do so if nine of its non-permanent members and all of its permanent members think such a drastic step is warranted.  Such (near) unanimity is unlikely, given that seven of the Council’s 10 non-permanent members (Belgium, Burkina Faso, Costa Rica, Croatia, Italy, Panama, South Africa) and two of the permanent members (France and the UK) are also members of the Court.  It is particularly difficult to imagine France permitting the Security Council to so dramatically undermine the ICC’s independence.

Stay tuned!

The Case for Indicting Bashir

by Kevin Jon Heller

I have been going back-and-forth with myself about the wisdom of indicting Bashir for genocide.  I continue to believe that the move is a risky one in the short term, given the likelihood that the Sudanese government will respond to the indictment with violence against the peacekeepers and the humanitarian workers in the country.   Nevertheless, I find the following defense of the Prosecutor’s move by Enough, a project associated with the fantastic Center for American Progress, to be very persuasive:

Skeptics warn that the ICC’s action against Bashir may cause Sudan to implode. But hundreds of thousands in Darfur have been killed or displaced by violence and its fallout. The UN-led peacekeeping effort remains largely stillborn, with seven peacekeepers killed in an ambush on July 8. Peace talks have been a dead-end, and tensions between North-South in Sudan threaten to unravel an earlier peace deal and could hasten Sudan’s disintegration. This is not a status quo that we should worry about upsetting with an arrest warrant.

On the contrary, the only way by which the fundamental dynamics of conflict in Sudan will change is by introducing accountability. President Bashir’s behavior in Darfur was predictably consistent with the way he presided over a war strategy in southern Sudan that led to seven times as many deaths. In waging its conflicts, the Sudanese government has repeatedly employed a strategy of divide-and-destroy at multiple levels of society, arming neighboring militias against each other to create a flimsy sense of plausible deniability that they were not directing the violence. No one on the ground had any illusion about the Sudanese government’s criminal behavior, and neither should the international community. Human rights violations committed by rebels in Darfur and the South should not distract attention from the culpability of the Sudanese government in deliberately directing the great majority of these atrocities.

[snip]

The case against Bashir introduces three new elements into the Darfur equation: leverage, deterrence, and protection. How they are utilized by the international community will help determine whether or not a solution for Darfur is at hand. Until now, the UN Security Council and powerful states have done little in the way of building direct leverage that can be utilized in support of either peace talks or protecting civilians on the ground. Although the ICC remains independent of the Security Council, there are means by which its investigations can be suspended or its targets given security assurances in exchange for a binding exile.  Bashir now must understand that his fate is tied to a peaceful resolution of the Darfur crisis, a sensible peace deal, and deployment of the UN-led protection force. After Moreno-Ocampo presents his case, the ICC judges will most likely take several months to make a decision on issuing a warrant for arrest. During this time the Security Council should vigorously build leverage in support of a peace deal and deployment of peacekeepers. Equally, the Security Council needs to understand that any effort to derail justice or interfere with the chief Prosecutor’s work would be a disaster.

Deterrence is also a positive new potential factor. Proper follow up to Bashir’s warrant could deter future perpetrators of crimes against humanity in Sudan.

Least discussed but potentially most important are the implications the arrest warrant will have for protecting civilians. The record shows over the last two decades that General Bashir’s regime has backed off its most deadly war strategies when international pressure has been well coordinated and at its high points. When the spotlight was on the regime’s use of food as a weapon, it relented. When the pressure focused on ending bombing of civilians in the South, it stopped. When the temperature went up over the regime’s facilitation of a resumption of slavery, it abandoned its strategy and slave-raiding ended. Putting the spotlight on Bashir provides a significant point of pressure that if backed by key governments and the UN Security Council could lead to real protection for the civilian population.

Enough also points out…

ICC Prosecutor To Charge Sudan’s President with Genocide

by Kevin Jon Heller