H.E. Mr. Kabinga Pande
Minister of Foreign Affairs, Republic of Zambia

Your Excellency,

We write in regard to the arrest warrant requested by the prosecutor of the International Criminal Court (ICC) for President Omar al-Bashir of Sudan. We are deeply concerned by the African Union’s call for the United Nations Security Council to suspend the investigation by this independent judicial institution; a suspension that would in effect deny redress to the victims of atrocities in Darfur. We urge you at the meeting of the African Union (AU) Peace and Security Council on September 22 to reconsider this position and move to reaffirm your commitment to ending impunity for such crimes and your support for the ICC and its continuing work in Darfur.

The ICC was created to ensure that any individual, including a head of state, who commits war crimes and crimes against humanity may be held to account. Twenty-two African countries were among the first to ratify the Rome Statute establishing the ICC, and 30 are now parties. They have each voluntarily shown their commitment to this institution established to end impunity for the world’s most serious crimes. Three of the ICC’s current investigations – Uganda, Democratic Republic of Congo and Central African Republic – were initiated at the request of African countries.

In a recent report from its 142nd meeting, the African Union expressed concern that the principle of universal jurisdiction is being abused to target Africans. Universal jurisdiction allows national courts, far from where the crimes occurred, to prosecute a limited number of the most serious violations of international law of concern to all people (such as genocide, crimes against humanity, and war crimes). Human Rights Watch opposes degrading justice into a tool for any political ends. We believe, however, that the benefits of limiting impunity for the most serious crimes through universal jurisdiction prosecutions outweigh the risk of prosecutorial abuse, which can be checked through judicial safeguards. We thus take issue with the African Union's position.

At the same time, the concern about universal jurisdiction must not be conflated with concerns about the possible arrest warrant for President al-Bashir. The ICC has jurisdiction over individuals of states that have submitted to its jurisdiction as well as situations that the UN Security Council has seen fit to refer to the prosecutor. The July 2008 AU Commission report on universal jurisdiction itself recommends using the ICC as a tool to combat concerns about potential abuse of universal jurisdiction. Thus, the matters raised by the request for a warrant against President al-Bashir must be considered separately from AU concerns about universal jurisdiction.

The ICC’s investigation in Darfur and any consideration of invoking article 16 of the Rome Statute to suspend it should, therefore, be considered only in relation to the specifics of the crimes that have been committed in Darfur.

Since the announcement of the request on July 14, 2008, there has been no improvement in the situation in Darfur. Instead, the Sudanese government has continued to carry out indiscriminate bombing and ground attacks on civilians. In July there were 21 separate incidents of aerial bombardment in Darfur; and in August and September government forces have carried out a series of attacks in North Darfur in which scores of civilians have been killed and thousands displaced. On August 25, 33 civilians, including women and children, were killed when government forces used excessive force during a raid on Kalma displaced persons camp in South Darfur.

In addition, there is no reason to believe that suspending the Court’s work in exchange for promises of future good behavior would result in significant changes in the government’s abusive policies in Darfur, nor that it would lead to improved civilian protection or justice for Darfur’s people. Khartoum has time and again made commitments to the international community that have proven to be worthless. By accepting further empty promises from the Sudanese government, the AU would be renouncing its own stated commitment to combating impunity for the gross violations of human rights in Darfur.

The Peace and Security Council has expressed its conviction that “the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace.” However there is no plausible connection between the continuing failure of peace talks and the request for an arrest warrant. The deadlock is rooted in lack of political will on all sides to achieve an agreement; a deadlock that has nothing to do with the ICC, but that is being entrenched daily by the government’s continuing pursuit of a military solution in Darfur.

The Peace and Security Council has also urged the Sudanese government to take immediate and concrete steps to investigate human rights violations in Darfur and bring to justice their perpetrators. Since that call in July, the Sudanese government has announced the creation of special courts for Darfur. These courts were in fact established in 2005, immediately after the prosecutor announced he was opening an investigation, yet to date have tried only a handful of cases of ordinary crimes, no cases in relation to a single major atrocity in Darfur, nor any cases involving a high-level official. If Sudan is genuinely willing and able to prosecute these cases in its national courts, Sudanese authorities could challenge the admissibility of the situation, or any case, under article 19 of the Rome Statute for the ICC judge’s ruling. However, this judicial procedure is entirely unrelated to the UN Security Council’s powers to suspend the investigation under article 16.

While a suspension under article 16 is limited to a renewable 12-month duration, once a deferral takes effect, it will be extremely difficult to terminate it as there will doubtless be even greater pressure to renew it in a year’s time and then at every succeeding year. A suspension, therefore, will allow Khartoum to use annual threats of violence and empty promises to secure permanent impunity for these crimes.

A deferral of the ICC’s judicial role risks denying redress to the thousands of victims of horrific abuses and must be invoked with extreme caution. Moreover, bartering away accountability for the most serious crimes under international law would set a very dangerous precedent. It would in effect turn back the clock to a time when Slobodan Milosevic, Augusto Pinochet, Charles Taylor and Radovan Karadzic could have slept soundly knowing their position as former heads of state allowed them to carry out the very worst of crimes with absolute impunity.

We urge the African Union to live up to its ‘unflinching commitment to combating impunity’ and end its calls for the UN Security Council to trade away justice for the victims in Darfur.

Yours sincerely,

Richard Dicker
Director, International Justice Program

Georgette Gagnon
Director, Africa Division

Cc:
AU Peace and Security Council Member States
H.E. Dr. Jean Ping, Chair, AU Commission
Mr. Ramadan Al-Amamra, Commissioner, AU Peace and Security Council
Mr. Geofrey Mugumya, Director, AU Peace and Security