Question:
Where has Al-Bashir's case with the International Court reached concerning the events in Darfur? Does the observed easing of tension between Europe and the United States mean they are close to reaching a compromise on these issues?
Answer:
First: To answer the question, it is necessary to review the events of the case and its related matters:
The International Criminal Court (ICC) is a product of European hands, designed to protect their interests under the cover of international law and to counter the American offensive. The ICC was established in 1998 through what is known as the Rome Statute. This was to prosecute individuals who commit serious crimes of international concern, such as genocide, crimes against humanity, and war crimes. It tries individuals who commit these crimes as a last resort, after local national courts fail to take any effective action.
The United States signed the Rome Statute on December 31, 2000, and Clinton ratified it before leaving the presidential office; however, the US Congress did not ratify the treaty. Shortly before the court opened in 2002, George W. Bush withdrew his country's signature from the treaty. Following that, George W. Bush issued laws to protect American soldiers, preventing the court from arresting Americans and ensuring they are not subject to its judicial procedures. Since then, America has become hostile toward the court.
Despite America and Sudan not signing the Rome Statute, the European Union—specifically France and then Britain—succeeded in creating local and global public pressure to issue a Security Council resolution referring the Darfur case to the ICC. They justified the referral to the Security Council, even though Sudan is not a signatory, by citing an article in the treaty that grants the court the right to follow any case if the court deems it a threat to international peace and security. To prove this, the Europeans, especially France, exploited the events in Darfur, exaggerated the crimes committed there... and created a public opinion that what was happening in Darfur threatened international peace and security due to millions of displaced people, hundreds of thousands of deaths, and horrific crimes amounting to genocide and war crimes... France and Britain focused on the crimes attributed to the Sudanese government and the Janjaweed militia linked to it, while overlooking the crimes of rebel movements supported by Europe, especially by France.
Thus, France and Britain generated popular sympathy for the events in Darfur against Al-Bashir's government, to the point that America was forced—during the vote on Security Council Resolution 1593 in March 2005, which referred the case to the ICC—to settle for being absent without using its veto power, even though it knew the resolution was a European creation aimed at its influence in Sudan! Consequently, the aforementioned resolution received 11 votes without opposition, with the absence of four countries: "Algeria, Brazil, China, and the United States." Although America was threatening countries during the deliberations not to vote, the public opinion created by France and Britain against Al-Bashir’s government due to Darfur's crimes was so strong that the United States did not dare oppose the referral resolution, settling for absence instead.
In February 2007, the ICC Prosecutor, Luis Moreno Ocampo, requested the court to issue arrest warrants for the former Minister of Interior, Ahmed Mahmoud Haroun, and Ali Mahmoud Ali, a leader of the Janjaweed forces also known as (Ali Kushayb). However, Sudan rejected the court's warrant. In April 2007, the court issued arrest warrants for both; the warrant contained 42 charges, including murder, persecution, and torture against Haroun, while Ali's warrant contained 50 charges, including murder and intentional attacks on civilians. Sudan immediately refused to hand over both defendants.
Sudan insisted on not handing over the suspects during the eight months following the arrest warrant despite intense European pressure. Finally, in November 2007, EU countries, led by Britain, demanded that the Security Council exercise more pressure on Sudan. British Ambassador John Sawers said, "It is a disgrace to the Security Council that one of those accused of violating human rights is appointed as a minister in the Sudanese government, and I am concerned that the Prosecutor's report to be presented to the Security Council next month will not contain much optimism." This was followed by rapid movements from Darfur rebel leaders loyal to Britain and France, demanding the Security Council take swift action. One of the rebel leaders in the Sudan People's Liberation Movement, Abdul Wahid al-Nur, told the Sudan Tribune newspaper, "Achieving peace in Darfur requires ending the culture of immunity for figures in Darfur," adding that "the Security Council must ensure Sudan's cooperation with the arrest warrant based on Security Council Resolution 1593. He warned that the failure of the Council to take firm action would be evidence of its inability to solve the problem." On December 3, 2007, the rebel movement in Darfur (Justice and Equality Movement) called on the international community to stand with the ICC in its work regarding Darfur. The movement's spokesperson, Ahmed Hussein Ahmed, told the Sudan Tribune, "Lasting peace cannot be achieved in Darfur without imposing justice." Meanwhile, Prosecutor Ocampo said he was preparing a new case.
Additionally, the European Parliament called on May 22, 2008, for the freezing of assets of Sudanese leaders who do not cooperate with the ICC. The Chief Prosecutor of the court revealed that he would announce a new case against senior officials in the Sudanese government. At the EU-US summit meeting, the French Ambassador to the UN, Jean-Maurice Ripert, said, "France and the European Union are ready to take more severe measures against the Sudanese government if Sudan continues its non-cooperation. All European leaders support me; it is the first time the six European countries (the six countries in the UN) have stated that the Security Council resolution must be respected."
Indeed, on July 14, 2008, the European Union, through the ICC, managed to indict Omar al-Bashir. Prosecutor Moreno Ocampo assigned ten charges to Omar al-Bashir: three for genocide, five for crimes against humanity, and two for murder. Judges expected to take months studying the evidence before issuing an arrest warrant for Al-Bashir. Thus, the Europeans succeeded in issuing a decision to pursue Al-Bashir, thereby dealing a blow to America's influence in Sudan by weakening its agent, Al-Bashir, who became an accused war criminal pursued by the ICC!
During this, America attempted to prevent the implementation of the ICC decisions, particularly those related to the serious pursuit of Al-Bashir, taking into account Europe's success in inciting public opinion against Darfur's crimes and Al-Bashir’s government, as well as the international respect for the court’s investigations... Therefore, it did the following:
a. The George W. Bush administration stated on April 26, 2008, that Washington respects the Hague court's investigations regarding atrocities in the Darfur region.
b. It sounded the alarm regarding the peace process developments in Darfur if the ICC continued the actual pursuit of more officials in Sudan. Former US Envoy to Sudan, Andrew Natsios, stated, "If the ICC carries out its threats reported in the newspapers regarding its intention to pursue more diplomatic figures in Sudan, we are pushing the country into a state of chaos and destruction." Then, it doubled these statements after the ICC explicitly indicted Al-Bashir, with the United States focusing on the idea that pursuing Al-Bashir would throw the peace process in Darfur to the wind...
c. America mobilized its agents in Africa and the Arab world to delay the court’s issuance of Al-Bashir’s arrest warrant. America sent Amr Moussa to urge Sudan to try "Haroun and Ali" in an African or Sudanese court, exploiting Article 16 of the Rome Statute, which states that the court is not authorized to look into cases being considered by local courts. This step was supported by the African Union, the Arab League, the Non-Aligned Movement, the Organization of the Islamic Conference, Tanzania, Kenya, Uganda, and others.
These attempts affected European pressures. Therefore, Europe directed its agents to criticize those supporting Sudan. The head of the Justice and Equality Movement said, "I fear the Arab League will be involved in conspiring with the Sudanese government against the people of Darfur, leading to a long-term catastrophe." He criticized the African Union, saying, "Article Four of the Union's law stipulates the intervention of the Union in any case where human rights are violated by any member state, including war crimes, genocide, and crimes against humanity. Why then does the Union not apply this article? Does the Union think the situation in Darfur is not tragic enough after five years?"
Nevertheless, Europe, especially France, realized that America’s mobilization of the African Union was influential. Therefore, it held meetings with African Union representatives and offered "gains" it wanted to achieve in exchange for "softening" its stance... It then concluded that it must meet America halfway, and that continuing to the end of the road was not feasible, neither in terms of pursuing Al-Bashir nor in terms of insisting on handing over the defendants "Haroun and Ali" to the ICC, but in exchange for gains achieved in negotiations, as stated by its officials. There are indicators of this:
a. Recently, French Ambassador to the UN, Jean-Maurice Ripert, stated, "We held intensive meetings with representatives of the African Union... and our message to Sudan is that Sudan must stop the killing and military operations in Darfur... and do what it can to stop human suffering and facilitate the delivery of humanitarian aid to Darfur... and allow all political parties to join the political discussion... and improve its relations with Chad."
b. On July 15, 2008, both the French Ambassador (Jean-Maurice Ripert) and the British Ambassador (John Sawers) said, "It is not too late for the Sudanese authorities to cooperate with the ICC in its indictment of former Interior Minister Ahmed Haroun and Janjaweed leader Ali Kushayb," meaning that Al-Bashir could avoid arrest if he handed over Ahmed and Ali. To market this offer, Britain ordered Libya, South Africa, and Qatar to intervene in the case.
c. On July 27, 2008, the Sudanese Foreign Minister revealed Britain and France's desire for Sudan to cooperate with the ICC and hand over both suspects. He noted the request of both countries to deploy peacekeeping forces and find a swift political solution to the conflict.
d. France, Britain, and America agreed to Libyan amendments to the draft resolution, which calls for freezing any indictment by the ICC against Omar Hassan al-Bashir...
e. Sudanese Minister of Justice, Abdel Basit Sabdarat, announced the appointment of a General Prosecutor named Nimr Ibrahim Mohamed specifically to look into human rights violations that occurred in Darfur since 2003. He then said: Kushayb will be interrogated and tried in local Sudanese courts. On September 1, 2008, General Prosecutor Nimr Ibrahim Mohamed confirmed he was investigating allegations accusing Janjaweed leader Ali Kushayb of committing war crimes in Darfur, saying, "We continue to interrogate Ali Kushayb, who is accused of committing war crimes..."
f. France showed some flexibility in its positions toward Sudan and Al-Bashir's government, and toward Haroun and Ali. It no longer conditioned their handover to the ICC; rather, it was sufficient for them to be tried before local courts and not remain ministers in the government...! Sarkozy recently stated in a meeting with journalists at the UN headquarters in New York regarding the handover of the two suspects, "We do not want the accused to remain ministers in the Sudanese government," referring to Haroun. Previously, French Ambassador to the UN, Jean-Maurice Ripert, stated, "I have said many times here that any action they take must include their official cooperation with the ICC. If they want to try their citizens in their own countries, they may do so according to the Rome Statute, but they must do so in agreement with the ICC, and it is not too late for cooperation."
g. On October 15, 2008, judges at the ICC requested more time before issuing an arrest warrant for Omar al-Bashir.
Second: Now, in light of the above, we can answer the question by saying:
The case of Al-Bashir and Darfur with the International Criminal Court is heading toward a compromise between America and Europe. This involves finding an exit from the crisis by having "Haroun and Ali" tried locally, thereby easing the pursuit of Al-Bashir and eventually canceling it, but in exchange for gains for Europe—specifically Britain and France—by establishing a foothold in Darfur through negotiations that ensure the effective involvement of their proxy rebel movements in the government, in addition to the security of Chad...
Because the case, according to its indicators, is heading toward compromise negotiations, and this requires the struggle of political powers, the use of pressure, and the heating of the atmosphere to improve the terms of the compromise—meaning give and take, pull and push... this solution is not easy, at least in the foreseeable future. In any case, a solution is not expected to be completed before the arrival of the new American administration at the White House in January 2009. Even after its arrival, it will need a significant amount of time due to the overlap of more than one influential power in the region.