Why are people so deeply concerned about the issuance of an arrest warrant? What people should be deeply concerned about is retaining someone like Bashir in a position like head of state, where he is in a position to continue committing crimes. The bottom line is that Bashir is a war criminal (perhaps I should say alleged, but it is completely unlikely the ICC Prosecutor would bring such a case before the Court without certainty of the guilt of the accused). It is Bashir who has been the cause of the death, rape, torture and displacement of millions of people. How is this moment now the “critical juncture” in the peace process, when the peace process has been ongoing for years now, and in reality, is unlikely to succeed anytime soon with or without the existence of the arrest warrant for Bashir? I think we can categorically say that Bashir is not the key to peace in Sudan. It is not the ICC that has pushed out humanitarian organisations from Sudan- it is Bashir. It is not the ICC that has been involved in ongoing violence targeting civilians- it is Bashir. Why is it seen as acceptable to have such a person leading a country and being involved in a peace process, but not for such a person to be held accountable for his actions?
Yes, of course, the answer is politics, and fear of leaders that they too will be held accountable for any crimes they may commit. They cry “violation of sovereignty and immunity”. Yet international law has moved far beyond blanket application of state sovereignty and immunities. While the sanctity of these two concepts is still respected, there are limitations on their application. Achieving peace should not and does not have to equal immunity for those who have committed crimes. The ICC was established with the aim of ensuring individual criminal responsibility- accountability- for the most horrific crimes, regardless of the position of the person committing the crime. While I personally do not agree that the ICC should restrict itself to only prosecuting the big fish (and am relieved the Pre-Trial Chamber’s ruling in this regard was overturned on appeal, see Prosecutor v Ntaganda), it is still vital that the Court does ensure the biggest fish are brought to justice. It is rare that a state will prosecute a former head of state (although not entirely unheard of, e.g. Fujimori), so the ICC needs to guarantee that there is a forum in which these leaders can be held accountable. One thing that was reiterated at the arrest warrant press conference was the fact that the ICC is a judicial institution and political considerations are not in its ambit- and that is indeed the way it is and should be.
What all states should be calling for is the immediate carrying out of the arrest warrant, the arrest of Bashir. States should recognise that the removal of one of the main elements of the conflict in Sudan will be the positive step towards peace, not the retention of that element. Bashir should be under pressure from all sides, from all regions. He should be unable to travel anywhere outside of Sudan without being arrested. The Security Council should not heed (which they have not done, and hopefully will not do) the appeals of the AU and Arab League to exercise their authority under Article 16 of the Rome Statute to suspend proceedings. Instead, they should adjust the mandates of UNAMID and UNMIS to include the power to arrest any persons currently wanted by the ICC. There should be unencumbered support by all states and the UN (both the GA and the Security Council) for the ICC’s decision to take a concrete step and call for the arrest of someone responsible for past and ongoing war crimes and crimes against humanity (and genocide? This we will see on appeal, undoubtedly). It’s about time someone was held accountable for the atrocities being committed in Sudan.