Flawed International Justice for Sudan

Those who follow events in Darfur closely know very well that Sudan’s President Omar Hassan al-Bashir leads a group of political and military leaders responsible for the serious and large-scale crimes against Sudanese citizens that the country’s military forces, with the assistance of paramilitary groups and militias, commit every day in the region. These citizens are guilty only of belonging to the three tribes (Fur, Masalit, and Zaghawa) that spawned the rebels who took up arms against the government a few years ago.

Any step designed to hold Sudan’s leaders accountable for their crimes is therefore most welcome. Nevertheless, the decision of Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court, to request an arrest warrant against al-Bashir is puzzling, for three reasons.

First, if Moreno-Ocampo intended to pursue the goal of having al-Bashir arrested, he might have issued a sealed request and asked the ICC’s judges to issue a sealed arrest warrant, to be made public only once al-Bashir traveled abroad. The Court’s jurisdiction over the crimes in Darfur has been established pursuant to a binding decision of the United Nations Security Council, which means that even states that are not parties to the ICC statute must execute the Court’s orders and warrants. Having instead made the request for a warrant public, al-Bashir – assuming the judges uphold the request – can simply refrain from traveling abroad and thus avoid arrest.

Second, Moreno-Ocampo has inexplicably decided to indict only Sudan’s president and not also the other members of the political and military leadership that together with him have planned, ordered, and organized the massive crimes in Darfur. If Hitler had been alive in October 1945, the 21 indictees who were in fact tried at Nuremberg would not have been let off the hook.