Should the ICC Oppose Sudan’s Election?

by Julian Ku

Sudan is preparing for a national election next month. It may not be the solution for Sudan, given that it is still very doubtful that there is enough cohesiveness for a genuine democratic result.  Still, I wonder if the ICC’s Prosecutor may be going a little far here.

A day after Sudan president Omar al-Bashir threatened to cut the fingers off election observers, the International Criminal Court’s chief prosecutor, Luis Moreno-Ocampo, called Sudan’s upcoming vote “a Hitler election.”

Mr. Moreno-Ocampo, who seeks to prosecute Mr. Bashir for crimes committed in Sudan’s troubled Darfur region during a war that killed at least 1.9 million people, today said election observers face “a big challenge” in Sudan.

“It’s like monitoring a Hitler election,” he said at a press conference in Brussels, according to Agence France-Presse.

What exactly is the proper international policy toward Sudan? The ICC arrest warrant locks everyone into a confrontational position, but since there will be no arrest of Bashir anytime soon, all of Sudan will have to lurch along without any political resolution for the foreseeable future.  The U.N. is going to monitor the election. Should they even bother?

The Elephant in the ICC’s Case Against Bashir: Head of State Immunity

by Julian Ku

Dapo Akande, who seems to know more about head of state immunity than anyone else, has an interesting post on the recent ICC Appeals Chamber non-decision decision in the case against Sudan’s President Bashir.  He points out that the Appeals Chamber failed to even mention the question of head of state immunity, which is important in this case because as a non-party to the ICC, Sudan has a pretty good argument that Bashir still has head of state immunity. It is at least a non-trivial argument which would undermine every other issue in the case against Bashir, if resolved in Bashir’s favor.  How could it not be addressed?  And when will it ever be addressed? I suppose if Sudan or Bashir ever show up to defend themselves.  It would be embarrassing if, after all of this, the ICC managed to arrest Bashir only to have its Appeals Chamber decide that he had immunity after all.

The Standard for Determining Intent to Commit Genocide

by Julian Ku

As Kevin notes, the ICC Appeals Chamber has overruled the Pre-Trial Chamber on the question of whether Sudan’s President Bashir can be charged with genocide.  In a very useful note, Chile Eboe-Osuji points out here that the Appeals Chamber did not in fact provide the Pre-Trial Chamber with guidance on what standard it should adopt to determine whether there was sufficient evidence of the “intent” to commit genocide to issue an arrest warrant.  As he puts it,

Curiously, though, the Appeals Chamber declined to give guidance to the Pre-Trial Chamber as to the correct applicable standard for the issuance of a warrant of arrest. Rather, the Appeals Chamber left it up to the Pre-Trial Chamber to devise the correct standard, as they reconsidered the case. This is not very helpful.

Read the whole post to see his best guess as to what the standard will be.  I would be curious to see if folks have different views than his.

The Obama Strategy on Sudan: How to Downplay the ICC

by Julian Ku

Looking at the long-awaited new Obama Sudan Strategy, there is much to admire.  It is sensible, forward-looking, and realistic.  It also appears to be pretty much the same policy President Bush pursued, which then Obama campaign adviser Susan Rice (and current UN Ambassador) trashed back in 2008.  For instance, it emphasizes ending the violence and war through a peace agreement, and barely mentions the elephant in the room.  How do you make a peace deal with a government headed by an individual wanted for war crimes and crimes against humanity?

Obama Will “Engage” on Sudan (And Ignore the ICC)

by Julian Ku

The Obama Administration is becoming famous for their Friday night news dumps (deficit reports are always on Fridays).  So here is another one sure to anger some parts of their base, but which is carefully buried while everyone is watching the Yankees beat up on the Angels.

The Obama administration has formulated a new policy for Sudan that proposes working with that country’s government, rather than isolating it as President Obama had pledged to do during his campaign.

In an interview, President Obama’s special envoy to Sudan, Maj. Gen. J. Scott Gration, said that the policy, to be announced Monday by Secretary of State Hillary Rodham Clinton, would make use of a mix of “incentives and pressure” to put an end to the human rights abuses that have left millions of people dead and displaced while burningDarfur into the American conscience.

General Gration said the administration would set strict time lines for President Omar al-Bashir of Sudan to fulfill the conditions of a 2005 peace agreementthat his government signed with rebels in southern Sudan; under the agreement, a proposal for independence for southern Sudan will be put to a vote in 2011.

It looks like Gration has won out over Sudan hawk Susan Rice in this interagency battle.  And this sounds like the least worst policy, given our options, but it is striking how it departs from the high-minded and hawkish language that both Obama and his VP Joe Biden used in their campaign, and their criticism of President Bush for not doing enough to isolate the regime (Biden wanted a no-fly zone and a NATO intervention!).

But even more striking:  the Obama Administration appears ready to make a deal with Sudan, without insisting on compliance with the ICC’s arrest warrants for Sudan’s President and other government officials. As a non-party to the ICC, this actually gives the U.S. more legal and policy room to make a deal.  But will the Obama Administration now move to have the prosecution deferred altogether?  They may have to (but I’m sure that story will be held back until at least the college football playoffs).