Written by Heather Knight for Human Rights House
Al-Bashir is the first leader to be charged by the International Criminal Court (ICC) whilst still in office. He stands accused of war crimes and crimes against humanity, with a majority of human rights activists viewing the warrant as a welcome challenge against impunity for those in power. The court’s ultimate aim is to try al-Bashir, but the consequences of this decision demands full scrutiny.
Immediately after the ICC publicised the warrant, al-Bashir refused to recognise its authority, supported by protestors who gathered in Khartoum. Following this came President al-Bashir’s order to expel or suspend selected humanitarian agencies within Sudan, accused of breaching national law by providing information to the ICC, which they in turn deny.
According to the UN, this will sever essential aid for over one million people. The agencies affected, including Save the Children, Oxfam and CARE, provide refugees with vital medicines, water and food, alongside relative safety within camps which they help to run. Tawanda Hondora, Deputy Director of Amnesty International’s Africa Program declared, ‘the Sudanese government is holding the entire civilian population of Darfur hostage’.
Unless there are successful negotiations to reverse the decision, the huge-scale consequences of this order remain clear. It is more difficult to visualise effective measures the ICC can take to mitigate the situation. They cannot rescind the warrant, but neither can they enforce it. The ICC has no army of its own, so any swift arrest of al-Bashir within his own country remains impossible. In addition, as long as the warrant is valid, it effectively eliminates any incentive for al-Bashir to relinquish power. This in turn may impact negatively on the outcome of peace negotiations in the South, while inviting a government crackdown on opposition members.
In deciding whether to open a case, article 53 of the Rome Statute allows ICC investigators to weigh up the justice of initiating proceedings against the ‘interests of the victims’. This is an incredibly difficult assessment to make. Although it is indeed satisfying and often necessary to have an international court indict people like al-Bashir, unless the court has the powers to immediately arrest and prosecute the accused, arrest warrants threaten to actually exacerbate rather than deter human rights violations against victims on the ground.
