"Bad Boys, What You Gonna Do When the ICC Catches You?”

By Prof Alemayehu G. Mariam / July 20, 2008

Justice Delayed, But Hopefully Not For Long!

In September, 2004 President George W. Bush lamented, “The world is witnessing terrible suffering and horrible crimes in the Darfur region of Sudan, crimes my government has concluded are genocide.” In July, 2008, President Omar al-Bashir officially became the numero uno wanted man for orchestrating genocide, war crimes, crimes against humanity and murder in the Darfur region of the Sudan.

In his application for an arrest warrant at the International Criminal Court (ICC), prosecutor Luis Moreno-Ocampo alleged that over the past five years al-Bashir had “masterminded with absolute control” and “appointed key personnel to implement” a criminal a plan “to destroy in substantial part the Fur, Masalit and Zaghawa ethnic groups as such. Forces and agents controlled by AL BASHIR attacked civilians in towns and villages inhabited by the target groups, committing killings, rapes, torture and destroying means of livelihood.” Bashir is accused of causing the deaths of 35,000 people “outright”. Drawing parallels to the Jewish Holocaust, Moreno-Ocampo explained that “these 2.5 million people [Darfurians] are in camps. They don’t need gas chambers because the desert will kill them.” He said he had no choice but to proceed with full legal action because al-Bashir “wants to end the history of the Fur, Masalit and Zaghawa people. I don’t have the luxury to look away. I have evidence.”

Of course, al-Bashir is presumed innocent until proven guilty. But in a public display of bravado, al-Bashir sneered at the charges and denied the jurisdiction of the ICC. He had already rejected extradition requests by the ICC to hand over Ali Kushayb, (“janjaweed butcher of Darfur”) and Ahmed Aroun (former Interior Minister and later Minister of State for Humanitarian Affairs). Last month, al-Bashir assured members of his Popular Defense Force, “I swear to God, I swear to God, I swear to God we will not hand over any Sudanese to the International Court.” For now, al-Bashir does not appear to be overly concerned; and it is unlikely that he will be the last Sudanese official to be sought by the ICC for criminal prosecution.

The Legal Significance of an al-Bashir Indictment

Genocide, crimes against humanity, war crimes and other gross violations of human rights often take place because the criminals who commit them believe they can do so with absolute impunity. History seems to support their view. In the past, the international community has failed to stop genocide, war crimes and crimes against humanity in Rwanda, Kosovo, Cambodia, Liberia, Sierra Leone and many other countries. Even today, the same international community has turned a blind eye to the genocidal crimes of Meles Zenawi in Ethiopia and Somalia, well documented in the 113-page Human Rights Watch report, “Shell-Shocked: Civilians Under Siege in Mogadishu”. Criminals like al-Bashir, Zenawi, Mengistu, Pol Pot, Charles Taylor, Slobodan Milosevic, Foday Sankoh and others calculated they can literally get away with the murder, torture and persecution of hundreds of thousands of people because there is no one around to hold them accountable. The lack of firm and determined international action has emboldened them to publicly display contempt for the rule of international law. In their arrogance, they convinced themselves that they are above the law, any law.

Charging al-Bashir for his atrocious crimes in Darfur shows that international criminals who commit heinous crimes against humanity are not immune from legal accountability. That is the central point of the ICC prosecutor in seeking the indictment of al-Bashir: No one is above the law, including a sitting head of state! This fundamental transformation in the international criminal legal system is of historic importance. It breaks both the pattern of factual impunity long enjoyed by these ruthless criminals, and shatters the perception that they are invincible, untouchable and unaccountable.

From Pinochet to al-Bashir: “Bad Boys, Bad Boys! What You Gonna Do, What You Gonna Do When the ICC Catches You!”

Moreno-Ocampos’s application for an arrest warrant has plunged all war criminals and human rights violators around the world -- heads of state and street thugs alike -- in deep legal anxiety. The ominous jingle of the World’s Most Wanted Criminals must be ringing in their heads: “Bad boys, bad boys, what you gonna do, what you gonna do when the ICC catches you!”

An indictment of al-Bashir will help greatly in the expansion and validation of international criminal procedure under the Rome Statute and other conventions because it reinvigorates and establishes on a solid footing the whole idea of “extra-territorial” and “universal” jurisdiction. Simply, this means judges and prosecutors in any country can seek extradition of genocide, war crimes and crimes against humanity suspects for alleged crimes committed outside their national jurisdictions. That happened to the late Chilean military strongman Augusto Pinochet and five other retired military officials nearly a decade ago. The Spanish Judge Juan Guzman indicted Pinochet and the others for crimes committed not only against Spanish citizens on Chilean soil, but also on charges that he is criminally responsible in the disappearances of 3,000 Chileans and the torture of hundreds of thousands of others.

An al-Bashir indictment will advance the cause of human rights and international justice immeasurably by facilitating the actual prosecution of these criminals. For instance, judges and prosecutors, particularly in democratic countries, can seek prosecution of international criminals under the Torture Convention of 1984, which requires states either to prosecute any suspected torturer found on their territory, regardless of where the torture took place, or to extradite the suspect to a country that will prosecute him. Signatory states could be required to effectively enforce the Geneva Conventions (particularly the Fourth Convention dealing with protection of civilians during war time) on the conduct of war, which requires each participating state to “search for” persons who have committed grave breaches of the conventions and to “bring such persons, regardless of nationality, before its own courts.”

Another important outcome of an al-Bashir indictment and trial could be the development of sophisticated legal theories for the prosecution of genocide, war crimes and crimes against humanity suspects. Jurisdiction over such crimes need no longer be limited to conventional criminal acts such as unlawful political and wartime killings. It may now be possible to prosecute suspects for such crimes as rape and sexual slavery, intentional starvation of civilian populations (weaponization of famine), terrorism of civilian populations, collective punishments, destruction of livelihoods and other inhuman acts that are intended to inflict great psychological harm to individuals and groups in society.

Al-Bashir Can’t Run and Can’t Hide!

If the ICC judges issue an arrest warrant, they will have effectively made al-Bashir a prisoner in his own country. Even as a head of state he will be restricted to the Sudan unable to travel or cross international borders. In the past, Interpol (the international criminal police organization) has issued “Red Notices” for suspects and fugitives from justice wanted by the ICC, which means al-Bashir could be arrested any time he crosses an international border. He will remain free as long as he stays in power, or figures out a way to bring about a political resolution to the Darfur crises that will cause a recall of the warrant. Otherwise, once indicted al-Bashir will remain a wanted man for the rest of his natural life, wherever he may be. He won’t be able to run or hide. We are hopeful that the three judges before whom the application for al-Bashir’s arrest warrant is made will in due course sign it; and that al-Bashir will be brought to trial. We are encouraged by the prosecutor’s 11-0 record on his arrest warrant applications to the ICC over the past 5 years since he took office.

There is much talk of “the-sky-will-fall-if-al-Bashir is indicted”. They say the Darfur peace process will be scuttled and U.N. peacekeepers will be attacked by the notorious janjaweed and so on. Similar alarms of doom were sounded when Sloboda Milosevic (“the butcher of the Balkans”) was first indicted in 1999, and died before the completion of his trial. The sky did not fall when the warlord Charles Taylor of Liberia was arrested in 2003. Taylor is currently on trial in the Hague; and Liberia is at peace under Ellen Johnson-Sirleaf, the first elected woman president in African history. In the final analysis, we can not pin our hopes of peace and the observance of the rule of law on war mongers and stone-cold criminals. Darfurians are entitled to justice! As Moreno-Ocampo said, al-Bashir “wants to end the history of the Fur, Masalit and Zaghawa people. I don't have the luxury to look away. I have evidence.” The international community has an obligation to bring about the end of the history of al-Bashir. It does not have the luxury to look away!

The Long Arm of International Law

Martin Luther King said, “The moral arc of the universe bends at the elbow of justice.” Today, the long arm of international law stretches to grab international criminals and bring them before the bar of justice from any point on the planet. For as long as there are determined and unrelenting prosecutors like Moreno-Ocampo, the likes of al-Bashir, Zenawi and Mengistu can be sure that one day the long arm of international law will catch them and bring them to kneel down before the altar of justice. Our question: “Bad boys, bad boys, what you gonna do, what you gonna do when the ICC catches you!”

The writer, Alemayehu G. Mariam, is a professor of political science at California State University, San Bernardino, and an attorney based in Los Angeles. For comments, he can be reached at almariam@gmail.com