al-bashir and the icc: peace vs. justice in darfur

Blockseminar: Making wars, building states

Peace vs. justice in Darfur

15.06.2010

06-108-914

Philippe Lionnet

Schermenweg 157

3072 Ostermundigen BE

[email protected]

+41 79 202 88 89

Europainstitut Making war, building states

Universität Basel Peace vs. justice in Darfur

Dr. Didier Péclard Philippe Lionnet

Prof. Dr. Laurent Goetschel 15.06.2010

2

Executive summary

Subject

International humanitarian law basically builds on two sources: codified and customary international law. The

enforcement of both is principally institutionalized in the International Criminal Court, the International Court

of justice and abstract principles like reciprocity in armed conflicts and customs of war.

In July 2008, the ICC decided to issue an arrest warrant on Umar al-Bashir, the current president of Sudan for

acts committed mainly by the Janjaweed-militia in the region of Darfur. The warrant has not been executed,

nor has there been any signal of cooperation with the ICC. The African Union has even openly refused to

support an arrest of president al-Bashir. Contrarily to estimations of different NGOs, there has been no

significant negative effect on the Peace-process in the region, anyhow.

Central argument

I claim that the effect of this politically non-executable warrant will be concerning much more the status of

international humanitarian law and its enforcement. Prosecution through the ICC has so far been a

theoretically powerful instrument for the strengthening of rather abstract minimal guarantees provided

especially through the Geneva Conventions for civilians and combatants in non-international armed conflicts.

The issuing of the warrant will not stand as a signal of an improved enforcement of international law in armed

conflict – but as an example demonstrating the incapability of the “international community” to influence

atrocities and extremely violent acts during armed conflicts in other than military ways and the non-existence

of equality between “western” and especially African states.

The idea of transferring originally European concepts of law and justice to complex conflict-situations and the

attempt to execute verdicts by legal mechanisms does not succeed in politically complex and fragile situations

– what already led to rather strange compromises in other cases, e.g. the temporary sealing of an arrest-

warrant against Bosco Ntaganda, who is nowadays part of the MONUC chain of command in the DRC. The

precipitant attempt to legally intervene in peace-building processes does not only bear the danger of having

counterproductive effects on them – but may also in the long run undermine the significance of the IHL in

African (and also other) civil wars as a whole.





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1. Introduction ___________________________________________________________________________________ 4

2. The ICC and Africa _______________________________________________________________________________ 5

3. The case Prosecutor vs. Umar el-Bashir _____________________________________________________________ 6

3.1 The need for interventions? ________________________________________________________________ 7

3.2 The warrant _____________________________________________________________________________ 7

3.3 Implications _____________________________________________________________________________ 9

4. Peace vs. justice _______________________________________________________________________________ 10

5. Conclusion ____________________________________________________________________________________ 13

6. Bibliography __________________________________________________________________________________ 15

6.1 Books & Articles _________________________________________________________________________ 15

6.2 Documents _____________________________________________________________________________ 16





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1. Introduction

International humanitarian law has encountered many legal and practical obstacles in its use in non-

international armed conflicts. Although its obligations are spread by NGOs and the ICRC in a manner which

makes it well-known in rebel organizations as well as in conventional armies, it remains a rather normative

approach to reduce suffering of combatants and civilians in civil war settings as well as it does in international

armed conflicts. Those states which have ratified the additional protocol II to the Geneva Conventions, have

agreed to follow a set of rules in non-international armed conflicts that goes beyond the humanitarian

minimum of common article 3 of the GC, which holds as a minimum yardstick in all other cases1. In countries

which have not ratified the additional protocol II, common Article 3 of the GC sets certain obligations if 1.) the

violence has reached a “certain threshold”2 and 2.) the armed non-state actor fulfills certain organizational

requirements3. If these are fulfilled, obligations may be imposed on armed non-state actors as well.

Atrocities during conflicts, which have to be considered as grave breaches of the humanitarian standards set by

codified and customary law, have been prosecuted in different cases. Until the ratification of the Rome statute,

the ad-hoc-courts formed entities limited in competences, territorial jurisdiction and time dealing with more or

less isolated conflicts. In Africa, the International Criminal Tribunal for Rwanda is probably the best known

example. Juridical actions like the indictment of former Liberian president Charles Taylor have not been yet

success-stories with a measurable positive effect on the political situation in the territories affected, but they

added the component of legal prosecution to civil wars in regions clearly not part of the “western” world. The

International Criminal Court (ICC), based on the Rome Treaty, is the first institution ever created to claim

universal jurisdiction as a goal, having a detailed catalogue of international crimes to be prosecuted and being

able to act independently parallel to the UN-institutions.4

1 Cf. Clapham, Andrew, The Rights and Responsibilities of Armed Non-State

Actors: The Legal Landscape & Issues Surrounding Engagement (February 1,

2010).

Available at SSRN: http://ssrn.com/abstract=1569636 (last access

06.06.2010). 2 This criterium serves mainly to keep political demonstrations, riots etc. out

of the sphere of international humanitarian law. The case-law of the ICTY

gives quite detailed descriptions to this issue. 3 He has to be able to ensure the respect of the IHL on an organisational

level, e.g. he has to be able to establish disciplinary mechanisms and

“effective command” over his soldiers. 4 Investigations may be initiated on initiative of a contracting party (Art. 14

Rome Statute), the UN Security Council (Art. 13 b Rome Statute) or the

prosecutor himself (Art. 15 Rome Statute).





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2. The ICC and Africa

The establishment of the international criminal court raised high expectations. For the first time in history, a

legal institute is expected to prosecute violations of international humanitarian law in any country ratifying its

statute as a treaty. The most grave breaches like the so-called “crimes against humanity”, genocide and

generally war crimes – in this context considered as crimes erga omnes5, crimes against humanity itself – could

no longer hide behind state sovereignty and incapable national juridical systems. If the Rome Treaty is ratified

in a State, investigations may be initiated subsidiary to national courts6 But who is actually dealt with in which

part of the world?

The first trial ever held in the ICC was against Thomas Lubanga, former leader of the Congolese “Union des

patriots congolais” (UPC)7. Since the DRC ratified the Rome Statute in April 2002, he could be transferred to the

court about a year after his arrest in March 2005 – the arrest warrant was issued as a consequence of an

investigation by the Prosecutor of the ICC on demand of the DRC government. Other trials followed concerning

Uganda, the Central African Republic, the DRC as well and finally Darfur – all African regions. The fifth example

– the investigation in Kenya – is pending at the time. This raises questions: Have there not been any cases

outside Africa relevant for the ICC at all? Repeated calls for trials against “western” leaders concerning their

actions in Iraq and Afghanistan and the use of indistinguishing violence by Georgian and Russian soldiers in

2008 at least rise some doubt.

There are arguments to explain the phenomenon of this obvious concentration on Africa: The “Freedom in the

world” report issued by Freedom house in 2007 stated that of the 20 countries with the worst protection of

civil and political rights, eight are in Africa (côte d’ Ivoire, Equatorial Guinea, Eritrea, Libya, Swaziland, Somalia,

Sudan and Zimbabwe) and of the 45 countries classified as “not free” 188. This may lead to a view which sees

an urgent need for international juridical systems in these regions, due to their incapability to provide legal

standards considered satisfying according to western standards. But the argument looses much of its

relevance, when the situation of the other countries mentioned in the report is considered – the majority is

definitely not African.

5 “Which affect the state community as a whole”, cf. Herdegen, p.271 ff.

6 E.g. if they are not capable or willing to hold fair, effective trials concerning

grave breaches codified in article 8 of the treaty. 7 For further facts, see http://www.lubangatrial.org/ (last access

11.06.2010). 8 Source:

http://www.freedomhouse.org/uploads/press_release/fiw07_charts.pdf

(last access 09.06.2010). The following reports stated a “decline” concerning

the criteria in the global setting.





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3. The case Prosecutor vs. Umar el-Bashir

The Sudanese government has undoubtedly followed a policy of economic and political marginalization against

the Fur, Masalit and Zaghawa ethnic groups in the region of Darfur. The campaign against the armed groups

Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM) was lead not only by

regular government troops against the rebel soldiers being legal combatants in counter-insurgency operations ,

but also in concert with local militias (Janjaweed) who committed serious crimes against the civilian population

of the Darfur region as well9. Villages were attacked – according to the UN-report on the conflict issued on July

14 2008 – continuously since march 2003. The measures taken by the militia included the destroying of

lifestock, poisoning of water sources and also violence including systematic rape of women and men10

. Umar

el-Bashir was accused of committing crimes through command responsibility by having the high command over

members of the state apparatur, the army and the Janjaweed militia according to article 25 3 a) of the Rome

Statute:

3. In accordance with this Statute, a person shall be criminally responsible and liable for

punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another

person, regardless of whether that other person is criminally responsible;

The report states as proven, that Umar el-Bashir received regular and detailed reports on the crimes commited

in the Darfur region, so that he had knowledge of the situation and the administrative power to stop any of the

actions described. Al-Bashir openly claimed to resist the prosecution by the ICC, also in the case of his human-

rights-minister Ahmed Haroun, who was also aimed at by an ICC-warrant11

for crimes against humanity before.

He confirmed “not to hand over any Sudanese to the ICC”. One day before the issuing of the warrant against

himself he told a crowd of cheering supporters during the opening of an hydroelectric dam in Merowe,

Sudan12

:

“They will issue their warrant tomorrow…this coming decision, they can prepare right now: they can

eat it.”

9 Report of the International Commission of Inquiry on Darfur to the United

Nations Secretary-General, Pursuant to Security Council Resolution 1564 of

18 September 2004, especially pages 3 ff. Source:

http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (last access

05.06.2010). 10

Ibid. 11

Warrant of Arrest for Ahmad Harun, 27.04.2007, ICC-02/05-01/07. 12

Sudanese president tells international criminal court to 'eat' arrest

warrant, the Guardian, Wednesday 4 March 2009, p.25.





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3.1 The need for interventions?

Before the arrest warrant was issued, there had been a widespread call for a military intervention in Darfur13

.

Although public protests in the USA and a set of campaigns by NGOs did not lead to a direct UN-intervention,

the peacekeeping force AMIS (African Mission in Sudan) was transferred to an AU-UN hybrid operation,

UNAMID. The discussion about the effective concept, the effective goals and the effective duration and size of

UNAMID showed a rather inadequate state of conceptualization in policies following the “responsibility to

protect”14

. The arrest warrant, which appeared as a surprising action followed this confused advocacy: the

political dimension of al-Bashir’s status in Sudan and his inflictions in the beginning peace-process seemed not

to have played a central role in the considerations of the court.

3.2 The warrant

Based on the UN-report and the investigation of July 2008, the Pre-trial chamber of the ICC issued an arrest

warrant against president Umar el-Bashir on the 4th

of march 2009. The accusation of genocide was dropped,

the criminal responsibility of Umar el-Bashir was stated for:

1. the intentional directing of attacks against a civilian population as such or against individual

civilians not taking direct part in hostilities as a war crime, within the meaning of article 8 (2)(e)(1) of

the Statute;

2. pillage as a war crime, within the meaning of artcle 7(1)(a) of the Statute;

3. murder as a crime against humanity, within the meaning of article 7(1)(b) of the Statute;

4. extermination as a crime against humanity, within the meaning of article 7(1)(b) of the Statute;

5. forcible transfer as a crime against humanity, within the meaning of article 7(1)(d) of the Statute;

6. torture as a crime against humanity, within the meaning of article 7(1)(f) of the Statute; and

7. rape as a crime against humanity, within the meaning of article 7(1)(g) of the Statute

The new dimension of warrant ICC-02/05-01/09 is manifested in the fact that Umar el-Bashir was and still is the

head of state in Sudan. This forms a constellation, which has not been encountered before and emphasizes on

a change of paradigms for state sovereignty and political immunity since the end of the cold war. The principle

of a “responsibility to protect” – according to this new paradigm - states not only an implicit right of states to

13

Cf. also: De Waal, Alex, Darfur and the responsibility to protect,

International Affairs 83, June 2007, p.1047ff. 14

Ibid.





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intervene from the outside against breaches of international law but also states legal obligations towards its

own citizens inside its borders15

. These shifting state obligations give the former static legal concept of

sovereignty a dynamic character. The ICC works in this sense as a subsidiary institution, if national legal systems

fail to act according to humanitarian obligations – in states, which have ratified the Rome Treaty. Treating the

Case of Sudan appears as an additional expansion of jurisdiction by the prosecutor of the ICC, Mr. Moreno-

Ocampo, as the state has not signed and does not intend to sign or ratify the contract.

As in Sudan, according to the pre-trial chamber of the ICC:

“There are no national proceedings in the Sudan against the perpetrator of crimes relevant to this

application. The only officers investigated were those who refused to comply with al-Bashir’s order to

commit genocide.”16

This statement in the prosecutor’s application does not only emphasize the superior position of the Rome

Treaty towards national legal systems, it also explicitly accuses al-Bashir of having issued direct orders to

commit genocide and not having Sudanese courts prosecute officers involved – but those who refused to

cooperate17

. This contains the two main obligations of the genocide-convention of 1948, the responsibility to

prevent genocide within the state borders and the strict ban of committing genocide18

. Anyway, the charge of

genocide was in the end not added in the warrant due to a lack of evidence, although there was a dissenting

opinion among the judges19

.

15

Cf. Herdegen, Matthias, Völkerrecht, München 2009, p. 307 ff. and 305. 16

International criminal court, Situation in Darfur, the Sudan, Document No.

ICC-02/05, 14.07.2008, p.3 and 12. 17

Ibid., p.12 ff. 18

Convention on the prevention and punishment of the crime of genocide,

Article II and ILC-Report. 19

International criminal court, Situation in Darfur, the Sudan, Warrant of

arrest for Omar Hassan Ahmad Al Bashir, Document No. ICC-02/05-01/09,

p.7 and ICC judges were divided over genocide charges on Sudan president,

Sudan Tribune 05.03.2009, source:

http://ns211683.ovh.net/spip.php?article30385 (last access 18.05.2010).





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3.3 Implications

The Rome Statute clearly formulates an obligation to cooperate with the ICC for all member states:

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in

its investigation and prosecution of crimes within the jurisdiction of the Court.20

The African Union although agreed by consensus in July 2009,

“The AU member states shall not co-operate... relating to immunities for the arrest and surrender of

Sudanese President Omar al-Bashir to the ICC.”21

The arrest warrant would “jeopardize the peace process in Darfur” and undermine ongoing efforts aimed at

facilitating the early resolution of the Darfur conflict. The League of Arabic countries reacted comparably22

. This

conflict between the intergovernmental integration in Africa and the Rome Treaty has not been resolved yet –

el-Bashir was not surrendered, although he travelled in countries which have ratified the Rome Treaty. The

African Union had before issued a request to the UN Security Council to defer the proceedings against el-

Bashir, which was not considered.23

Human rights organizations partly welcomed the warrant. As Richard

Dicker of Human Rights Watch put it:

"With this arrest warrant, the International Criminal Court has made Omar al-Bashir a wanted

man"24

20

Rome Treaty, Article 86. 21

The release is not available by the AU itself, for a copy check:

http://humanrightsdoctorate.blogspot.com/2009/07/african-union-defying-

international.html (last access 09.06.2010). 22

In an attempt to obstruct international justice, the African Union and the

LAS have requested the UN Security Council to invoke Article 16 of the Rome

Statute, which would require the Prosecutor to suspend the case for one

year. See also:

http://www.amnestyusa.org/document.php?id=ENGPRE200903279969&lan

g=e&rss=recentnews (last access 03.06.2010). 23

DECISION ON THE MEETING OF AFRICAN STATES PARTIES TO THE ROME

STATUTE OF THE INTERNATIONAL CRIMINAL COURT, AU-Document,

Assembly/AU/13(XIII), p.2. 24

Warrant issued for Sudan’s leader, BBC News 12. March 2009. Source:

http://news.bbc.co.uk/2/hi/africa/7923102.stm (last access 10.06.2010).





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The political action taken by the AU illustrated, that al-Bashir was at least not wanted by most African

governments.

Concerns also rose concerning the timing: About two weeks before the warrant was issued, peace-talks in Doha

had brought first progress. On the 17th

of February 2009, a protocol between the Sudanese government and

the JEM was signed which formed a base for further talks25

. In the middle of march 2009, parts of the SLM/A

signaled their readiness to be involved in the process as well. The Sudanese government reacted on the

warrant by expelling multiple humanitarian organizations from Darfur and terminating the additions to the

Cotonou-treaty with the European Union – these include the clause that all ratifying states have to sign the

Rome Treaty as well26

. As a reaction on these measures, the JEM interrupted their participation in the Doha-

talks.

4. Peace vs. justice

The practice of the ICC seems to be inconsistent as far as can be stated from the few existing cases. While the

temporary sealing of a warrant against former rebel-leader and today chief-of-staff Bosca Ntaganda in the DRC

because of his meaning27

for the UN-mission MONUC (for which he serves as a re-integrated leader of the

Congolese army) and the peace-process as an important exponent of the “Forces Patriotiques pour la liberation

du Congo” (FPLC) was done unpretentiously, the ICC acts yet much more persistently concerning el-Bashir. The

problem appears in the very nature of the IHL. Rules and conventions formulated mostly on customs of

originally European inter-state warfare are hard to impose on conflicts in a civil war setting combining multiple

factors like historical, ethnical, political and economic to an overwhelming complexity. The work of the ICRC

has – despite all difficulties – proved a certain success in disseminating the IHL and establishing a humanitarian

minimum by working together with rebel groups and governments and in providing a certain degree of

25

Sudan, Darfur rebels agree to hold peace talks, Reuters 17.02.2009.

Source: http://www.reuters.com/article/idUSTRE51F3E120090217 (Last

access 10.06.2010). 26

Statement of the European Union on the non-ratification of the revised

Coutonou-agreement by Sudan, August 2009. Source:

http://ec.europa.eu/development/icenter/repository/sudan_final_non-

ratification_faq_200908.pdf (last access 30.05.2010). 27

"Public knowledge of the proceedings in this case might result in Bosco

Ntaganda hiding, fleeing, and/or obstructing or endangering the

investigations or the proceedings of the Court", source:

http://www.guardian.co.uk/world/2010/feb/05/congo-child-soldiers-

ntaganda-monuc (last access 02.06.2010) and ICC Press Release, Warrant of

arrest against Bosco Ntaganda unsealed, ICC-CPI-20080429-PR310.





11

ownership also in non-governmental armed groups. Not being norms executable and enforceable by a clearly

defined legal apparatus like national law, the IHL must in many cases refer to concepts like reciprocity and

convenience to awake an actual interest of parties to a conflict to follow these rules and develop a legal

responsibility.

In case of grave breaches of humanitarian standards, international ad-hoc courts based on UN-resolutions like

the ICTY or the ICTR with their geographically limited scope and jurisdiction have brought an important

element to the enforcement of the IHL – the threat against any perpetrator of grave breaches to be at a time

considered as a war criminal and indicted for his deeds. This may and does give additional strength to IHL by

establishing concrete consequences for violations. The ICC is in fact an enormous expansion of this

strengthening, because it is in form and nature of a wider and much more precise jurisdiction. It is a chance for

a sustainable improvement of the status of the IHL in international and non-international armed conflicts

theoretically all over the world. The main element of this effect is credibility. The threat of prosecution and

indictment is based on the belief that a military or political leader really can and will be sentenced one day, no

matter in which position he is and within which state’s borders he acted. Also on the individual base of

international law, the ICC may be a helpful instrument to hold all parties involved accountable for their action –

still, there is a long way to go until e.g. armed groups may be considered as a legal object themselves or even

international “customs” of warfare can be stated as a reality in civil-war settings.

On the other hand, there are efforts to build peace. Not only peace by cease-fire agreements, but peace as a

sustainable state of affairs, where the mentioned historical, ethnical, political and economic issues are not only

set off by an prolonged interim solution keeping the regions in a political abeyance but manage it to work

through and on a process of stabilizing and improving circumstances. The interference of an external institution

like the ICC and the indictment of leading individuals may have unpredictable consequences on their behavior:

They may not be willing of giving up their privileged positions in the political and/or military structures at any

cost to avoid prosecution, they may react with even more intense acts of violence to protect themselves,

ensure their legitimacy as a group or just because they see no possibility to leave the state of violence on

another road than in handcuffs towards the Hague.

However, the limited experience with indictments during a peace-process do not necessarily harm peace-talks

and processes. The ICTY did not yet visibly interfere with the ongoing stabilizing- and transitional processes in

former Yugoslavia, the indictment of the former Liberian president Charles Taylor by the ad-hoc tribunal for

Sierra Leone was not seen as an obstacle for negotiations and peace-building processes by the ICC 28

. These

28

The so-called “Charles-Taylor-effect”, the possible negative consequences

of the removal of a perpetrator of a peace-process by arrest. According to

the ICC, it did not have the severe consequences feared so far. Cf.





12

situations although were different in terms of political conditions: Slobodan Milosevic had already been lifted

from his position as president of Serbia, when he was arrested after a military intervention by NATO members

in 1999. Charles Taylor had no more effective political power in Liberia because he had de facto fallen from

power at the moment of his arrest. When speaking of Umar el-Bashir, another problem rises from him being

formally confirmed in power by an election held in 2010. His strong support in northern Sudan is not at least a

consequence of the fact, that Sudan as a whole went through a period of prosperity since al-Bashirs coup in

1989 – its gross domestic product has nearly tripled29

. The indictment of an in economic terms successful

African head of state may – despite the fact that he probably is responsible for atrocities in the Darfur region –

leave another impression of an injust focus of the ICCs work on Africa. Also that the immunity of an African

head of state is ignored by the Rome Statute as a guiding principle30

– a matter of fact which, when executed as

in the al-Bashir case, will certainly not confirm the support among other African state-leaders for the further

establishment of the Rome Statute.

Another issue which is not to be overseen is the accusation of neo-colonialism. As ideological as it may sound, a

neglect can only lead to a merely Eurocentric view. One may imagine, how a European state would react if a

court situated on the African continent would issue a similar warrant for the arrest of a state leader, another

member of the government or even an ordinary citizen. Although the Rome Treaty has to be signed and ratified

before being able of having any effect at all, it has certain interlinks. As mentioned in connection with the

Coutonou-treaties, a clause in the additions makes the signing mandatory for African countries, if they want to

receive transfers by the European Union. The law enforcement at all costs by an external court based on

western law-concepts seems to be even more questionable when considering that e.g. all States of the

European Union made special agreements with the Afghan government confirming that none of their

soldiers/citizens will be rendered to any international court – and that the United States in fact did sign the

Rome Treaty but persistently refuse to ratify it31

. There has not been any military operation of an European

country or the US since the establishing of the ICC without a clause excluding its jurisdiction against the soldiers

or their responsible command.

International Criminal Court, Review Conference of the Rome Statute, 31.

May – 11. Juni 2010, RC/ST/PJ/INF.4. Source: http://www.icc-

cpi.int/iccdocs/asp_docs/RC2010/Stocktaking/RC-ST-PJ-INF.4-ENG.pdf (last

access: 12.06.2010). 29

International monetary fund statistics, source:

http://www.imf.org/external/pubs/ft/weo/2009/02/weodata/weorept.aspx

?pr.x=36&pr.y=10&sy=1989&ey=2010&scsm=1&ssd=1&sort=country&ds=.&

br=1&c=732&s=NGDP_R&grp=0&a= (last access 18.05.2010). 30

Art. 27 of the Rome Statute excludes political status as an obstacle for

investigation and prosecution – in the reading of the prosecutor in the case

al-Bashir also for non-contracting states. 31

Herdegen, p.407 ff.





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5. Conclusion

While the humanitarian intervention represents the military measures the “world community” may take in case

of violations against IHL, the warrant in fact symbolizes the legal dimension of a “world governance”-concept. It

implies a rule of law which claims to be more valuable than state sovereignty, political immunity or the

possibility to reach a positive state of peace by a long-term process under involvement of all relevant actors.

The attempt to establish an overall rule of law, which does not halt before state sovereignty and political

problems does not just lead to juridical or philosophical questions about the worth of “common principles” of

international law – it also raises questions of rather political concern. First, the issuing of a warrant which is not

and will not be executed for obvious political reasons puts the very worth of the ICC as a mechanism of

enforcement for international humanitarian law at stake. The credibility of the institution is damaged through

the fact alone that it pushes signing parties of the Rome Statute to political action against its work – the

possibility of calling upon the security council to set out the warrant according to article 1632

of the Rome

Statute has already been used by the African Union33

. Second, it supports the position of those arguing that the

ICC does not at all establish the possibility of real international law-enforcement, but is rather an instrument of

imposing an external rule of law on so-called “weak” or “failed” states while keeping citizens of “western”

countries outside its jurisdiction. The fact that al-Bashir is considered a successful, self-confident and strong

president and that he has been confirmed in a multi-party election makes him even more of a controversial

subject concerning this external indictment.

The fact that the warrant was issued at a very critical moment of the beginning peace-process shows another

problem which has to be considered of a legal institution acting in conflict-scenarios like the ICC does: every

measure taken by an international organization by its own may interfere with the progress and work of others

in a conflict or post-conflict setting. The best way to avoid negative consequences would be the use of

coordinative mechanisms to define a broad set of rules of engagement. The prosecutor of the ICC has the

possibility to act independently and to initiate investigations concerning any setting he chooses – an option

which was controversially discussed before the Rome Statute. This option may separate the ICC from the

policies of the UN-security council, as it in fact happened in Sudan. Without a sense for the political background

32

The Security council has the possibility to demand the ICC to put off

investigations for a period of 12 months based on a chapter-VII-resolution. 33

AU statement of July 2009: “The publicity-seeking approach of the ICC

Prosecutor, the refusal by the UN Security Council to address the request

made by the African Union and other important International groupings for

deferment of the indictment against President Bashir of The Sudan, under

Article 16 of the Rome Statute of the ICC”. Source:

http://www.sudantribune.com/spip.php?article31864 (last access

13.06.2010).





14

and the actual political realities, this possibility of acting independently may lead to a mere insignificance of the

ICC as an instrument of law-enforcement and on the long term to a missed chance of strengthening the rule of

IHL in conflicts – and thereby the protection of people’s lives and rights in armed conflicts.

The decision of pushing the enforcement of humanitarian law in case of the atrocities in the Darfur region by

stating an example through the warrant may be correct from a moral point of view. It may even not be proved

to be legally wrong. But it was a much too bold step at a much too early stage of development of the ICC,

setting negative political signals by addressing of all things an African case. Maybe it was less bold but rather

priggish. If the “responsibility to protect” should ever become more than a mere phrase, solo attempts like the

warrant have to be integrated in something which is so far missing – a grounding concept.





15

6. Bibliography

6.1 Books & Articles

Benda-Beckmann, Franz von, The power of law in a transnational world. Anthropological enquiries, New York

2009.

Clapham, Andrew, The Rights and Responsibilities of Armed Non-State

Actors: The Legal Landscape & Issues Surrounding Engagement (February 1, 2010).

Available at SSRN: http://ssrn.com/abstract=1569636

Chomsky, Noam; Gockel, Gabriele, Der gescheiterte Staat, München 2009.

Crawford, Emily, The treatment of combatants and insurgents under the law of armed conflict, Oxford 2008.

De Waal, Alex, Darfur and the responsibility to protect, International Affairs 83, June 2007, p.1047ff.

Djiena Wembou, Michel-Cyr, Fall, Daouda, Le droit international humanitaire, Théorie générale et réalités

africaines, Paris 2000.

Fleck, Dieter, The handbook of international humanitarian law. 2. Ed., Oxford 2004.

Frutig, Andreas, Die Pflicht von Drittstaaten zur Durchsetzung des humanitären Völkerrechts nach Art. 1 der

Genfer Konventionen von 1949, Auf dem schmalen Grat zwischen Recht und Moral., Diss., Bern 2008.

Fuss, Michael, Das Verantwortlichkeitsregime der nicht staatlichen Konfliktpartei für die Verletzung des

humanitären Mindeststandards, Universität Bochum, Diss., Kovac (Studien zum Völker - und Europarecht, 47),

Hamburg 2007.

Gasser, Hans-Peter; Thürer, Daniel, Humanitäres Völkerrecht, Eine Einführung, Baden-Baden 2008.

Herdegen, Matthias, Völkerrecht, 8. Auflage, München 2009.

Lange, Katja, Der Status der Aufständischen im modernen humanitären Völkerrecht. Diss., Philipps -Univ.

Marburg, 2007, Frankfurt am Main 2007.





16

Schabas, William A., War crimes and human rights, Essays on the death penalty, justice and accountability,

London 2008.

Schaller, Christian, Humanitäres Völkerrecht und nichtstaatliche Gewaltakteure. Neue Regeln für

asymmetrische bewaffnete Konflikte?, Berlin 2007.

6.2 Documents

Amnesty international press release, League of Arab States/Sudan: Humanitarian Assistance Must Not Be Made

Hostage To Arrest Warrant Against President al-Bashir. Source:

http://www.amnestyusa.org/document.php?id=ENGPRE200903279969&lang=e&rss=recentnews (last access

03.06.2010).

Article in “the Guardian” concerning the sealing of arrest warrant against Bosco Ntaganda. Source:

http://www.guardian.co.uk/world/2010/feb/05/congo-child-soldiers-ntaganda-monuc (last access 02.06.2010).

Convention on the prevention and punishment of the crime of genocide of 1948.

DECISION ON THE MEETING OF AFRICAN STATES PARTIES TO THE ROME STATUTE OF THE INTERNATIONAL

CRIMINAL COURT, AU-Document, Assembly/AU/13(XIII). Source:

http://humanrightsdoctorate.blogspot.com/2009/07/african-union-defying-international.html (last access

09.06.2010).

ICC Press Release, Warrant of arrest against Bosco Ntaganda unsealed, ICC-document No. ICC-CPI-20080429-

PR310.

Inofficial Website containing daily and weekly reports about the Lubanga trial, maintained by the Soros

Foundation (Branch: Open Society Justice Initiative). Source: http://www.lubangatrial.org/ (last access

11.06.2010).

International Criminal Court, Review Conference of the Rome Statute, 31. May – 11. Juni 2010, ICC-document

no. RC/ST/PJ/INF.4. Source: http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/Stocktaking/RC-ST-PJ-INF.4-

ENG.pdf (last access: 12.06.2010).





17

International Criminal Court, Situation in Darfur, the Sudan, ICC-document No. ICC-02/05, 14.07.2008.

International Criminal Court, Situation in Darfur, the Sudan, Warrant of arrest for Omar Hassan Ahmad Al-

Bashir, ICC-document No. ICC-02/05-01/09. Source: http://ns211683.ovh.net/spip.php?article30385 (last

access 18.05.2010).

International Monetary Fund statistics concerning Sudan. Source:

http://www.imf.org/external/pubs/ft/weo/2009/02/weodata/weorept.aspx?pr.x=36&pr.y=10&sy=1989&ey=2

010&scsm=1&ssd=1&sort=country&ds=.&br=1&c=732&s=NGDP_R&grp=0&a= (last access 18.05.2010).

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant

to Security Council Resolution 1564 of 18 September 2004. Source:

http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (last access 05.06.2010).

Resumee of the “freedom in the world” report by the US-NGO Freedom House. Source:

http://www.freedomhouse.org/uploads/press_release/fiw07_charts.pdf (last access 09.06.2010).

Rome Statute of the International Criminal Court of 1998.

Statement of the European Union on the non-ratification of the revised Coutonou-agreement by Sudan, August

2009. Source: http://ec.europa.eu/development/icenter/repository/sudan_final_non-

ratification_faq_200908.pdf (last access 30.05.2010).

Sudan, Darfur rebels agree to hold peace talks, Reuters 17.02.2009. Source:

http://www.reuters.com/article/idUSTRE51F3E120090217 (Last access 10.06.2010).

Sudanese president tells international criminal court to 'eat' arrest warrant, the Guardian, Wednesday 4 March

2009, p.25.

Warrant of Arrest for Ahmad Harun, 27.04.2007, ICC-document No. ICC-02/05-01/07.

Warrant issued for Sudan’s leader, BBC News of 12. March 2009. Source:

http://news.bbc.co.uk/2/hi/africa/7923102.stm (last access 10.06.2010).