London
30 July 2008
Sudan has launched a diplomatic offensive against an attempt to bring
Sudan's president, Omar Hassan al-Bashir before the International
Criminal Court in The Hague on charges of genocide and war crimes
stemming from the conflict in Darfur. Tendai Maphosa reports from
London.
Sudanese President Omar Hassan al-Bashir scoffed at the
idea of prosecution and one of his senior advisors warned that if the
International Criminal Court persists, Sudan would not be able to
guarantee the safety of U.N. peacekeepers or other foreign nationals in
Sudan.
They were reacting to the announcement in The Hague by
the criminal court's chief prosecutor, Luis Moreno-Ocampo, that he is
requesting an arrest warrant for the president.
Moreno-Ocampo said
even though the president may not have actively participated in events
in Darfur, he gave the orders to have people killed, raped and
displaced.
"He basically targeted to attack three groups, the
Fur, Masalid and Zaghawa to destroy them, first he attacked them in the
villages, they removed from the villages, they went into camps and now
they are attacked in the camps so genocide is a crime of intention we
don't need him to kill two million people to say now we can sue him, we
need to stop him before," he said.
Should the court's
pre-trial judges agree, Mr. Bashir would become the first sitting
president to have such an arrest warrant issued against him.
The
request for a warrant for President Bashir's arrest brings up the issue
of immunity enjoyed by heads of state and government under
international law.
Anthony Dworkin, who runs a non-government
organization to raise public awareness of the laws of war, explains
that heads of government can be prosecuted.
"There is a long
standing principle in international law that heads of state enjoy
immunity from prosecution, but that immunity is limited to other
national courts, to domestic jurisdiction in other countries, so a head
of state cannot be prosecuted while he is serving in office in another
state," he said. "But there is a long-standing tradition in
international law that international tribunals do not have to give
immunity to head of states."
Dworkin cautioned that even if Mr. Bashir were to be indicted, apprehending him would be almost impossible.
"The
government of Sudan should deliver the suspect to the court, but no one
expects that to happen as Sudan has not cooperated, so far, with the
arrest warrants that have been issued for two other much more junior
people," he said.
Dworkin added that countries that are
signatories to the International Criminal Court would be obliged to
execute the arrest warrant if President Bashir goes on to their
territory. As a result, he says, the Sudanese leader might just avoid
visiting those countries.
The Sudanese government has repeatedly
denied the allegations against it and rejects the court's
jurisdiction. In addition, Sudanese embassy spokesman in London Khalid
al-Mubarak believes heads of state and government cannot be arrested.
"All
heads of government have got immunity; this was actually through an
initiative by President Eisenhower a long time ago and his argument was
that heads of government travel to solve problems that is why immunity
is important for them," he said.
The government has also sought
to enlist the support of other Muslim and African countries. The
African Union has petitioned the U.N. Security Council to defer the
International Criminal Court's decision to investigate and prosecute
President Bashir.
Sudan has also warned that ICC charges could dim prospects for peace negotiations in Darfur.
International
law expert Elizabeth Wilmshurst of the London-based research center,
Chatham House says that should a warrant be issued there is a way to
keep the peace process going.
"The court statute itself provides
a way out; if a particular court process is detrimental to a particular
peace process article 16 of the statute says that the Security Council,
on behalf of the international community can ask the court to stop
proceedings for a year," she said.
Human rights activists say
formal charges against Mr. Bashir would send a strong message to other
leaders who abuse the rights of their people that it is not business as
usual any more.
Others fear that, once indicted, despots will
hold on to power to avoid being brought before the courts, as they
remain untouchable as long as they hold office.
Mr. Bashir's
case will be followed closely. Calls for Zimbabwe's President Robert
Mugabe to answer for the violence surrounding his recent re-election
campaign have grown louder in recent weeks.