(IP)– The Pre-Trial Chamber I of the International Criminal Court (ICC) issued a warrant for the arrest of Omar Hassan Ahmad Al Bashir, President of Sudan, for war crimes and crimes against humanity earlier this month, according to an ICC press release. The Sudanese head of state is “suspected of being criminally responsible, as an indirect (co-)perpetrator, for intentionally directing 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.” This is the first warrant of arrest ever issued for a sitting Head of State by the ICC.
The warrant was issued shortly after the head of one Darfur’s rebel groups, Abdel Wahid Al Nur of the Sudan Liberation Army (SLA), visited Israel last month to request an increase in support in its fight against the Sudanese government, as reported by Haaretz. The Justice and Equality Movement (JEM), an SLA rival, was also reported last month by Sudan’s state media as receiving considerable military equipment from Israel.
Although the ICC can only prosecute crimes committed during or after July 2002, other heads of state (former) are also eligible to be prosecuted. The New Zealand Herald reports David Crane, an international law professor at Syracuse University and former prosecutor in the special tribunal that indicted Liberian President Charles Taylor, commented: “The principle of law used to issue an arrest warrant for Omar al-Bashir could extend to former US President Bush over claims officials from his Administration may have engaged in torture by using coercive interrogation techniques on terror suspects… which mostly amounted to torture.” Global Research reported United Nations General Assembly chief Miguel d’Escoto Brockmann to have likewise stated: “All pretended justifications notwithstanding, the aggressions against Iraq and Afghanistan and their occupations constitute atrocities that must be condemned and repudiated by all who believe in the rule of law in international relations,” Brockmann told the Human Rights Council. The general tally of deaths in Iraq exceed one million. “The illegality of the use of force against Iraq cannot be doubted as it runs contrary to the prohibition of the use of force in Article 2(4) of the United Nations Charter,” continued Mr Brockmann. “It sets a number of precedents that we cannot allow to stand.”
Yet, it is more likely that the ICC will allow such atrocities to stand without prosecution and, in the case of the ongoing genocide of Palestinians, to continue. Genocide is defined in the Rome Statute as the following acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group:” (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”
However, the UN Security Council (which referred the Darfur situation to the ICC) in its 2004 report on the subject conceded that there is no genocide in Darfur as “the various tribes that have been the object of attacks and killings do not appear to make up ethnic groups distinct from the ethnic group to which persons or militias that attack them belong. They speak the same language (Arabic) and embrace the same religion (Islam). In addition, also due to the high measure of intermarriage, they can hardly be distinguished in their outward physical appearance from the members of tribes that allegedly attacked them. Furthermore, inter-marriage and coexistence in both social and economic terms, have over the years tended to blur the distinction between the groups.” Therefore, while groups like “Save Darfur” and “Genocide in Darfur” accuse President Bashir of genocide, the ICC warrant stops short, accusing him of war crimes, a more general charge.
As Arab News notes, the ICC “has held only Africans to account. Currently, the court is holding investigations into ‘the situations’ in Uganda, the Central African Republic and the Democratic Republic of Congo.” Therefore, it would seem, that whether war crimes/genocide are punishable or not is subject to interpretation of an international body. Certainly, the opinions of Americans have not been taken into consideration. A February poll in the US revealed that 62 percent of Americans favor a criminal investigation or an independent panel to look into the use of torture, illegal wiretapping, and other alleged abuses of power by the Bush administration. The warrant against Mr Bashir, a sitting head of state, opens new doors that could not only infringe upon national sovereignty, but apparently would be done so by a body which, having only prosecuted war crimes in Africa, currently seems to lack impartiality.
The Associated Press reported March 12 that UN Chief Ban Ki Moon announced President Omar al-Bashir could still “order his country’s courts to prosecute war crimes in Darfur and possibly avert his own war crimes trial by the International Criminal Court.” Egypt and the African Union had been calling on the ICC to delay the proceedings in the interests of promoting peace talks that could put an end to the Darfur War and to keep the continuing peace with southern Sudan, instead of completely destabilizing the region.
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