President Omer Al-Bashir briefs correspondents on the situation in Darfur region of the Sudan, at United Nations Headquarters in New York.

Most people would agree that the principle upon which the International Criminal Court (ICC) was set up is a good one. A court with the jurisdiction to hold rulers, juntas, states and armies to account for crimes against humanity, war crimes and genocide wherever they are committed is one that should be welcomed. In 1998, the ICC was agreed upon in Rome with the backing of 120 member countries amid hopes that no-one could escape repercussions from his or her crimes. It’s been more than eight years since the Court’s been up and running but the general consensus, today, is that the ICC has failed miserably to abide by the spirit of its mandate.

Instead of ‘International’ the ICC should, surely, be termed ‘African’. Only four Congolese have ever been surrendered to the Court. Currently, the ICC is investigating ‘situations’ in the Democratic Republic of Congo, Uganda and the Central African Republic.

Subsequent to a UN Security Council Resolution it has recently issued an international arrest warrant in the name of the President of Sudan Omar Hassan Al Bashir in connection with Darfur. Saudi Arabia, Qatar and Egypt have been vehement in their opposition to the warrant. Both the Arab League and the African Union are asking the Security Council to defer it for a year to allow the opportunity for a negotiated peace settlement. Britain, France and the US are digging in their heels. China and Russia support the deferral.

 

Secretary-General Ban Ki-moon in a meeting with President Omar Al-Bashir. Location: Khartoum, Sudan.

United Nations Peacekeepers arrest former Liberian President Charles Taylor.

This is the first time this court has attempted to try a sitting head of state. The former leader of Yugoslavia Slobodan Milosevic was tried by a special UN tribunal, while former Liberian President Charles Taylor is currently awaiting justice at the hands of a Special Court for Sierra Leone in The Hague. Those expensive trials have not been particularly successful. Mr. Milosevic died before his trial reached its conclusion. Mr. Taylor may shortly walk free because the court which runs on voluntary contributions is without enough funds to continue.

As for the ICC it has come under mounting criticism. Critics say it is politicised, selective and biased. After all, are we to deduce that only Africans have committed war crimes since 2002? What about those responsible for the invasion and occupation of Iraq under false pretences, which has resulted in over a million Iraqi deaths? What about Israel’s slaughter of 1,200 Lebanese civilians and over 1,400 residents of Gaza with weapons that are internationally banned for use in highly populated areas, such as white phosphorous and cluster bombs?

The problem is most of the big powers haven’t ratified membership of the ICC and, therefore, the only way their officials could appear before the Court is via a Security Council referral. This will never happen because they are largely permanent Security Council members with the power of veto.

Isn’t there something fundamentally wrong with this scenario? Imagine a court in any country that is only empowered to deal with criminals of certain nationalities or relatively powerless individuals, leaving the big guns to their own devices. That would be unconscionable if not laughable wouldn’t it? Can a form of justice that doesn’t apply equally to all be considered just?

Besides the inherent injustice of cherry-picking defendants, indicting leaders arguably makes the situation worse for the very people the Court seeks to defend. President Bashir, for instance, is so outraged that he has expelled a number of foreign charities and NGOs on whose humanitarian assistance the people of Darfur depend, accusing them of colluding with the ICC.
 

Security Council Approves Trial Transfer of Former Liberian President, Charles to Netherlands.

 

Luis Moreno-Ocampo, Prosecutor of the ICC, addresses a Security Council meeting on the situation in the Sudan

While touring the country speaking to massive supportive crowds he said “We will fight against the neocolonialism. Why does the ICC turn a blind eye to the criminals that have slaughtered millions of people? Where is the justice? Where is the international justice?”
 

Miguel d'Escoto Brockmann, President of the sixty-third session of the General Assembly.

Critics who say the warrant against the President of Sudan is purely political cite the recent discovery of massive reserves of oil in the west of the country that have been largely earmarked for China, which, today, buys more than two-thirds of Sudan’s oil. China’s economic rise has fuelled an ever-increasing demand for oil and it was quick to form a relationship with oil-rich Sudan, much to the dismay of its Western competitors. The two countries have cemented numerous economic deals and, according to the Washington Post, China is “Sudan’s largest supplier of arms”.

Had there been a special UN Resolution expressly aimed at President Bashir’s referral to the Court, it is more than probable China would have vetoed it. However, Resolution 1953 passed in 2005, requiring Sudan to cooperate fully with the International Court, has been resurrected for this purpose.

China fears the warrant could destabilize efforts towards peace in Darfur and has openly come out against it. China’s Foreign Ministry spokesman Qin Gang praised the bilateral relationship describing it as “conducive to the two peoples and the region’s peace and stability. China will continue to develop such a relationship with Sudan,” he said.

In the unlikely event President Bashir were to be ousted and a more Western-friendly leader installed in his place, Western interests would definitely be served. However, there is no way we can know the true motives of those championing President Bashir’s arrest. Whether they are inspired by genuine concern for the long-suffering people of Darfur or something more sinister is a question only they can answer.

In reality, President Bashir is unlikely ever to appear before ICC judges. As Richard Dicker of Human Rights Watch pointed out, the ICC is devoid of police to enforce its warrants and has to rely on the compliance of governments. The warrant will restrict his ability to travel, although it’s worth mentioning that out of the 22 Arab League member countries only Jordan, the Comoros and Djibouti have ratified the Court.

In January, the Palestinian Justice Minister Ali Khashan wrote to the ICC recognising its authority as a prelude to its possible investigation of Israel’s crimes in Gaza. But don’t hold your breath! Before proceeding, the ICC must first decide whether Israel has de facto sovereignty over Gaza – in which event the case would have to be referred to it by the Security Council – and, most importantly, whether the Palestinian National Authority can be considered as the leadership of “a state”.

In Dickens’ famous novel Oliver Twist, Mr. Bumble is informed that “the law supposes that your wife acts under your direction” and he retorts, “If the law supposes that…the law is an ass”. Judging by the International Criminal Court’s record thus far, those words could be more profound than we realise.