Bringing Sudan's Leader to Court Could Bring Unexpected Benefits
March 6, 2009

The arrest warrant for President Omar al-Bashir of Sudan is an important test of the European Union's long-standing commitment to justice and the International Criminal Court (ICC) at The Hague.

It is a commitment that it extended to Sudan last June when it said it would consider imposing sanctions if Sudan did not stop flouting its obligations to arrest the first two suspects charged by the ICC in the Darfur situation: Ali Kosheib, a leader of the Janjaweed militia, and Ahmed Haroun, currently Sudan's minister for humanitarian affairs.

No one should be surprised that the court has now found reasonable grounds to believe that al-Bashir, the commander-in-chief of the Sudanese Armed Forces, is responsible for atrocities in Darfur. But justice will struggle to prevail in the face of the hostile reaction to the warrant from China, Russia and many Arab and African leaders, whose stated concerns over the non-existent "peace process" masks a solidarity with the oppressors rather than their victims. If justice is to be done, the EU must take a vigorous stand.

The EU's declaration reiterating its support for the court after it issued the warrant was a welcome first step, but much more will be necessary to ensure some measure of justice for Darfur's victims. In particular, the EU must be ready, as it has promised, to impose targeted punitive measures against those Sudanese officials responsible for a failure to co-operate with the ICC. It needs also to firmly reject any attempt to use the UN Security Council to suspend the prosecution of Bashir. And it needs to lean heavily on Sudan's allies, such as China, to convince them to use their leverage in Khartoum to make clear that Bashir's retaliations against civilians and humanitarian groups maintaining a lifeline to millions of people in Darfur are unacceptable.

Dire warnings - unproven by experience

The EU has recently demonstrated that by standing firm it can play a critical role in promoting justice for atrocities that seem destined to go unpunished. As a result of the EU's insistence that Serbia fully co-operate with the International Criminal Tribunal for former Yugoslavia, one of the most elusive war-crimes suspects in recent history was arrested when, after 13 years, Serbian authorities surrendered the notorious Bosnian Serb leader Radovan Karadžić.

Karadžić is now facing atrocity charges for his role in the massacre of thousands after the fall of Srebrenica in July 1995 and in numerous other crimes, including the shelling of Sarajevo. Standing firm on the principle of full co-operation with the tribunal conveyed to Serbia and to the broader international community that justice is not negotiable.

Some are now arguing that justice for Darfuris should wait and that peace should come first. This argument is a familiar one. When the arrest warrant for Charles Taylor, then the Liberian president, was unsealed as he arrived for peace talks in Ghana, diplomats were outraged and certain it would scuttle the talks. Yugoslavia's prosecutor heard similar protests after she sought an arrest warrant for the Serbian leader Slobodan Milošević in the midst of his negotiations with NATO to end the conflict in Kosovo. Similarly, the indictment of Karadžić in 1995 was met with concerns about how that would impact prospects for ending the conflict in Bosnia.

Yet, in each situation, the nay-sayers were proven wrong and the predicted dire consequences did not occur. The marginalisation of Taylor actually helped facilitate negotiations to end the civil war by making it clear he would not stay on as president. Anticipated retaliatory violence in response to news of the warrant never materialised. Ten days after Milošević was indicted, the terms of a peace agreement were agreed upon and the conflict in Kosovo ended. Karadžić's indictment resulted in his exclusion from peace talks at Dayton, which made it possible for Bosnia's president to reach an agreement with Milošević, who at the time (only months after the massacres at Srebrenica) was a much more palatable counterpart with whom to negotiate.

While each situation is different and it is impossible to predict the future, experience demonstrates that allowing the ICC to proceed independently may have unanticipated positive consequences, by marginalising bad actors. Given what we know now, the EU should reiterate its unfailing commitment to justice and the ICC and demonstrate that a leadership position is no longer a free pass for committing serious crimes.

Sara Darehshori and Elizabeth Evenson are senior counsel in the International Justice Program at Human Rights Watch.