Can the ICC Execute its Warrant?

The ICC has, at long last, issued a warrant for Sudan’s military dictator, Omar al-Bashir, on charges of war crimes and crimes against humanity. Although the anticipated charge of genocide was left out, it remains a historical moment, as this is the first time the ICC has charged the current leader of a state, albeit a failed state.

To recap, in November, we noted that the International Criminal Court’s chief prosecutor was calling for al-Bashir to be charged personally with multiple counts of genocide, crimes against humanity and war crimes. Al-Bashir had seized power of the Sudan in 1989, and ruled ever since as the military dictator of one of Africa’s most ruthless regimes. In the Darfur region of western Sudan, a war had raged for about five years, with government troops and proxy fighters committing massive bloodshed against rebel groups as well as civilians and entire villages seen to be sympathetic to the rebels. Despite enormous outcry from the rest of the world, and pressure from the U.N. and powerful nations, al-Bashir had shown no inclination to temper or cease the bloodshed. On the contrary, it appeared that his regime had only ramped up the violence in a war that is estimated to have killed hundreds of thousands of human beings through murder, combat, starvation and disease. But after Moreno-Ocampo started calling for ICC charges to be brought against him, al-Bashir called for a unilateral cease-fire in an attempt to get the U.N. Security Council to defer any legal action.

Later, we reported that Moreno-Ocampo warned the Security Council that any criminal charges could cause al-Bashir to launch a violent reprisal against peacekeepers and civilians, and so the U.N. would need to be prepared to take action. Meanwhile, the African Union and the Arab League asked the Security Council to defer the prosecution, on the curious grounds that prosecuting war crimes and genocide were not helpful to the peace process.

It was beginning to look like the Security Council was going to go along with the crowd, and defer any prosecution indefinitely — even though doing so would have created a terrible precedent of appeasement and keeping out of situations like Darfur. So it was an act of unexpected conviction for the ICC to be permitted to go ahead and issue its warrant for al-Bashir.

The warrant doesn’t charge everything that Moreno-Ocampo had called for, notably omitting the charge of genocide. Still, it does charge the sitting head of state with “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.”

Issuing a warrant is one thing. Executing said warrant, however, is an entirely different matter. When will the ICC get its chance to arrest al-Bashir? Moreno-Ocampo stated “as soon as al-Bashir flies outside Sudan, he could be arrested.” The odds of al-Bashir doing any such thing are vanishingly small.

So significant odds were overcome, courage was demonstrated, and a significant new precedent has been set in International Criminal Law. But practically speaking, there is little chance that anything will come of it. 300,000 are still dead, countless injured and suffering, and 2,700,000 refugees (according to the U.N.’s Darfur numbers), without any international action to punish those who committed the crimes.

It’s not over yet…