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THE UNIVERSITY OF KANSAS
Noncompliance with Justice:
An analysis of the ICC indictments of the Sudanese leaders and Sudan’sdefiance of the Court
Maureen E. Didde
December 2008
POLS 689Dr. Mariya Omelicheva
Didde 2In July of 2008, the front page of many international papers announced that theInternational Criminal Court (ICC) Prosecutor had applied for an indictment of PresidentAl Bashir of Sudan on charges of genocide and other crimes against humanity. After years of violent conflict in Sudan and continued bloodshed in the Western region of Darfur, the world breathed a sigh of relief that justice would finally be served. But theleaders of Sudan had different plans in mind.Just three years earlier, two of Sudan’s political leaders were indicted by the ICCon similar counts, yet one of them still remains a prominent member of the government.Sudan’s government has made it clear that if Bashir were to be indicted, he wouldcontinue to hold the presidency because Sudan has not recognized the ICC as a plausibleinternational institution. In effect, Sudan is ignoring the international community that backs the ICC on counts that its sovereignty is at risk. Therefore, I pose the followingquestion: Is the International Criminal Court’s indictment of political leaders in Sudan aviolation of state sovereignty? In this paper, I put forth and defend a negative answer tothis question and explore why Sudan disobeys the ICC’s rulings?I begin by describing the International Criminal Court and its indictment of Sudanese political leaders. I will then define state sovereignty and review its historicalroots and connections to human rights. Next, I will argue that the ICC’s indictments arenot violations of state sovereignty, and briefly explore the actions of Sudan in response tothe ICC’s rulings. Finally, I will propose a few challenges both to Sudan and to theinternational community to end this metaphorical stand-off.
The International Criminal Court and the Sudanese Cases
The International Criminal Court (ICC) was established in 2002 upon theratification of the Rome Statute by 108 countries (not including Sudan). Presently, theStates Parties include 30 African states, 14 Asian states, 16 Eastern European states, 23Latin American/Caribbean states, and 25 Western European and other states (ICC,2008(a)). The purpose of the ICC is to “exercise its jurisdiction over persons for the mostserious crimes of international concern, as referred to in the Statute, and shall becomplementary to national criminal jurisdictions (ICC, 1998).” The ICC itself refers tothese actions as those of “last resort,” only trying those accused of “the gravest crimes.”The ICC acts only in cases where national judicial systems do not. Also, the UN SecurityCouncil has the ability to “trigger the provisions under the Statute that enables it to refer situations in non-State parties to the world court if it deems that it is a threat tointernational peace and security (Sudan Tribune, 2008).” That is the only case in whichthe ICC can act within a nation that has not ratified the Rome Statute, and will bediscussed in further detail later.Before an explanation of the Sudanese indictments, it is pertinent to understand a brief summary of the situation in Sudan that has led to the cases. The nation of Sudanendured a twenty-year long civil war that ended with a peace treaty known as theComprehensive Peace Agreement (CPA) in 2005. However, since 2003 the war hascontinued to rage in a Western region of Sudan known as Darfur. The conflict is knownto be primarily ethnic and tribal, yet involves many factors beyond this—such asenvironmental issues, control of oilfields, and political motives. In 2003, several rebelgroups rose up against the Sudanese government with accusations of being oppressed asnon-Arabs. The government lashed back with a state-supported militia known as the
Didde 3Janjaweed. The Janjaweed is known to have committed massive crimes against humanityand genocide, which continues today (Reuters, 2005).Therefore, the ICC has indicted two Sudanese leaders, Ahmad Muhammad Harun(Ahmad Harun) and Ali Muhammad Al Abd-al-Rahman (Ali Kushayb). Currently, theICC’s prosecutor is in the process of requesting an arrest warrant for the President of Sudan, Omar Al Bashir on accounts of war crimes against humanity and genocide. The prosecutor, Luis Moreno, has presented his case for this indictment to the judges, andtheir decision is pending. The rest of this section will go into some detail regarding theseindictments.Ahmad Harun served from 2003-2005 as the Minister of State for the Interior of Sudan and managed the Darfur Security Desk. Presently, he is the Minister of State for Humanitarian Affairs in Sudan. Harun’s position involved coordinating all of the entitiesinvolved in the counter-insurgency against the rebel fighters, which included theJanjaweed militia. Ali Kushayb is known to be a key leader of the Janjaweed militia, thegroup held responsible for extensive crimes and violence in Darfur. According to theICC, he was known as the “mediator” between the leaders of Janjaweed and the SudaneseGovernment (The Hague, 2007). The warrants of arrest for both Harun and Kushayb areseparate, yet include many similar accusations, including over twenty counts of crimesagainst humanity each. These crimes include murder, persecution, forcible transfer of population, rape, imprisonment or severe deprivation of liberty, pillaging, torture, andother “inhumane acts”. Each count also involves over twenty war crimes, includingviolence, degrading treatment towards individuals, intentional attacks against civilians, pillaging, rape, and destruction of property (The Hague, 2007).Omar Hassan Ahmad Al Bashir is currently under pending indictment for masterminding many of the above crimes against humanity and war crimes, as well as thecrime of genocide under Article 6 of the Rome Statute. The application for his arrest byLuis Moreno states: “The Prosecution does not allege that Al Bashir physically or directly carried out any of the crimes. He committed the crimes through members of thestate apparatus, the army and the Militia/Janjaweed in accordance with Article 25 of theStatue (indirect perpetration or perpetration by means) (ICC, 2008(b)).” At present,Moreno’s application for this arrest warrant is in the hands of the court awaiting judgeruling. Many sources predicted that the indictment will go through by the end of 2008,however the ICC is silent on the issue at the time of this research (November 2008).Overall, the initial creation of the ICC through the implementation of the RomeStatute has led to these international actions towards Harun, Kushayb, and Bashir. Never before has an international court existed that brings individual criminals to justice at thislevel (the ICC is unlike the UN’s International Court of Justice in that the latter dealswith states, not individuals). Therefore, the actions of the ICC and the indictments of these Sudanese leaders are anomalies in world history. The rulings against these three (aswell as ten other individuals) deserve particular attention as to the reasons for their indictments and the validity of their reactions, which will be discussed in the following pages.
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