A famous sign on President Truman’s desk said ‘the buck stops here’. The principle is reflected in several dimensions of international criminal justice. Under article 28 of the Rome Statute of the International Criminal Court, leaders can be held responsible for the crimes committed by their subordinates, to the extent that they consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes. Under article 25, leaders can be held responsible for crimes committed by their subordinates to the extent that these were part of a plan or policy (‘joint criminal enterprise’). The Prosecutor’s approach to choice of targets is to focus on ‘those who bear the greatest responsibility’.
There has been much debate in International Criminal Court circles about the Prosecutor’s choices in the other ‘situations’ within his purview, namely northern Uganda, the Democratic Republic of the Congo and the Central African Republic, as well as his decision not to proceed in other areas, such as Iraq. He seems to focus on rebel groups, usually steering clear of government officials and leaders. But the International Criminal Court was created to go after the likes of Charles Taylor, Augusto Pinochet and Slobodan Milosevic, not insurgent warlords who can equally well be tried within the courts of their own countries, if the authorities can catch them.
In his last presentation to the United Nations Security Council, Prosecutor Moreno Ocampo eloquently recalled that while a Government has the right and responsibility to maintain control of its territory, ‘there is no military justification for bombing schools, and no legal excuse for raping women’. He said such crimes have been ‘carefully prepared and efficiently implemented. They are not mistakes. They are not inter-tribal clashes. They are not cases of collateral damage. They are, quite simply, criminal acts against civilians — unarmed civilians. Citizens from the Sudan are being deliberately attacked by Sudanese officials. In the words of Harun, the people of Darfur are the enemy. Their own State is attacking them.’
If he is right, then Moreno Ocampo should be prosecuting the head of the state that is attacking them. Ordinarily, President Bashir would benefit from the immunity of a head of state granted him by international law. But the International Court of Justice has already said that this does not apply in the case of the International Criminal Court. The Head of State of a country that has not joined the Court, which is the case for Sudan, might have a plausible argument of immunity, but not when the prosecution is triggered by the Security Council.
Of course, the Rome Statute ensures Bashir’s right to the presumption of innocence. The Rome Statute imposes obligations upon States to cooperate with the Court, but this is clearly limited to their own territory. States with projects and activities within Sudan would not be required to take any action, although they might choose to do so. Nor would any particular obligations be imposed upon the United Nations. But issuance of an arrest warrant against President Bashir would raise the temperature enormously, providing additional arguments and impetus to campaigners in other countries seeking to protect the vulnerable in Sudan.
The real pressure can only come from the Security Council. It launched the process, with Resolution 1593. Now, the Prosecutor and the Court are at the mercy of the Council, because its cooperation is required if any arrest warrant is to stand a chance of being successfully enforced.
The Security Council is a political, not a judicial, body. That is why the ‘like minded states’ and international civil society, which earned so much of the credit for the form that the International Criminal Court eventually took, insisted upon a Court with an independent prosecutor, rather than one subservient to the Security Council. Security Council referral of the Darfur situation was a mixed blessing. It came with strings attached by the Americans. If the Security Council is not prepared to take action, with a further resolution directed at bringing those already charged and – should he be accused – President Bashir to The Hague, then the arrest warrants will be little more than hollow gestures. Hopefully, then, should the Prosecutor intend to charge President Bashir with genocide, crimes against humanity or war crimes, he will already have tested the political waters in New York to make sure there is at least a chance of action.
The Prosecutor has been going through a tough time recently. His first trial, scheduled to begin in late June, has been cancelled by the Trial Chamber because of irregularities in gathering evidence. His first investigation, in Uganda, is totally stalled, and increasingly the Court looks to be the victim of manipulation by President Museveni. A more robust judicial intervention in Sudan from the Court has the potential to restore its flagging credibility. But biting off a head of state is a big piece to chew. There is much opportunity here for the Court, but also danger.
William Schabas is Director of the Irish Centre for Human Rights at the National University of Ireland, Galway.
