The law unto themselves

The prosecution of Sudanese president could threaten the country

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"All animals are equal, yet some animals are more equal than others,” George Orwell famously wrote in his political satire Animal Farm, in which pigs rule over all other animals, using dogs as their foot soldiers. The novel has not lost an inch of its value in today’s “new world order.”

On July 14, the International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo accused Sudanese president Omar Bashir of genocide, crimes against humanity and war crimes in Darfur. While every sane person wishes a rapid end to the tragedy that includes mass murder, rape and some 2.5 million people displaced, international prosecution of Sudan’s sitting head of state may bring more harm than good.

Legal action may not only jeopardize the UN peacekeeping operation in Sudan, but is likely to end all hopes for a negotiated settlement of the conflict. More importantly, the prosecution of Bashir may very well bury the ICC before it was even properly born.

Established by the 1998 Rome Statute, the ICC in The Hague currently has 106 member states. With the exception of Jordan, the Middle East is not represented among the signatories — a status quo unlikely to change any time soon. In order for the ICC prosecutor to investigate crimes it has to be be asked to do so by a member state or the United Nations Security Council (UNSC). Such was the case in 2005 when the UNSC adopted Resolution 1593, which referred the Darfur dossier to the ICC prosecutor.

Ironically, three out of five permanent UNSC members (Russia, China and the US) have not signed the Rome Statute and thus do not recognize the ICC’s jurisdiction. Hence the rather awkward situation has emerged that three nations refer a fourth to an international court, which none of them recognize, all the while referring to an international treaty none of them have signed.

As a consequence of this legal oddity, in Resolution 1593 the UNSC recognizes that “states not party to the Rome Statute have no obligation under the Statute,” yet ordered the Sudanese government to fully cooperate with the ICC investigation. The UNSC also determined that the ICC investigation will not be paid for by the UN, but by states who are signatories to the Rome Statute. As that does not include most permanent member states the UNSC added, “and states that wish to contribute voluntarily.”

The procedure only gains in ridicule, knowing that the driving force behind Resolution 1593 is the US, although from the start Washington has tried to torpedo the ICC. The Clinton administration hesitantly signed the Rome Statute, much to the dislike of its Republican successor, which has developed a severe allergy to the faintest of international flavors. The Bush administration could have simply not ratified the Rome Statute, yet in May 2002 it in fact decided to un-sign the treaty.

The US claims to be concerned with the fate of individual American peacekeepers around the globe, as they run the risk to be prosecuted “on political grounds,” even though the ICC is only authorized to judge “big” crimes, such as genocide and war crimes. According to journalist Jim Lobe, the US went on to lobby for a UNSC resolution that would exempt all American nationals from ICC jurisdiction.

The US did so by — among other measures — threatening to veto the renewal of the UN peacekeeping operation in the Balkan. Under pressure of mainly the EU, however, the US had to settle for a compromise. The UNSC adopted Resolution 1422, which exempts UN peacekeepers from prosecution, thus creating another legal anomaly: the international community has an international court, yet its own soldiers do not fall under the court’s jurisdiction.

To be absolutely certain that no American soldier will ever be tried by the ICC, Washington then adopted the American Service-Members Protection Act, which goes as far as to authorize the US President to use military force to free any US service member held by the court. And thus the legislation is also known as the “The Hague Invasion Act”

Ever since, the US has continued its opposition to the ICC by persuading third nations to sign bilateral agreements to not surrender or transfer US nationals to the ICC. On a diplomatic level, it pushes for a greater and preferably permanent role for the UNSC, which would mean that Washington could veto any ICC prosecution that does not conform with its or its allies’ interests. China and Russia will arguably be in favor of such an agreement, as they enjoy the same veto right.

Consequently, in sharp contrast with the nature of the Rome Statute, which aims to offer a system of justice for all victims of the world’s worst crimes, the ICC threatens to become a political toy in the hands of the happy few.

 Peter Speetjens is a Beirut-based journalist.

Peter Speetjens

Peter Speetjens is a Dutch journalist & analyst based in Brazil.