Is the Al Bashir Case at the International Criminal Court Beyond Any Compromise?

The purpose of this blog post is to assess the probability of a compromise in the case of Al Bashir in light of articles 16, 65 and 53 of the Rome Statute. Despite the prominent developments in the field of international criminal law, the failure to prevent such serious crimes such as genocide, war crimes and crimes against humanity remains salient. The reason behinds this failure is the fact that the deterring effects remain hardly unseen and the response of international criminal justice to these atrocities has not been not comprehensive. Primarily, Al Bashir's case is a legal one, and it can only be settled on legal grounds. On 31 March 2005, Resolution 1593 was adopted by The UNSC under Chapter VII of the UN Charter to refer the situation in Darfur – Sudan to the Prosecutor of the International Criminal Court (hereinafter the Court) based on article 13 (b) of the Rome Statute. On 14 July 2008, based on article 58 of Rome Statute the Prosecution filed an application requesting the issuance of an arrest warrant against the president of Sudan Al Bashir for his alleged criminal responsibility concerning the crimes committed in Darfur against the tribes of Fur, Masalit and Zaghawa including genocide, crimes against humanity and war crimes between the period 2003 to July 2008.

Since 2003, more than 300,0000 people have been killed, and over 2.3 million have internally displaced in Darfur. Now, crimes are not only committed in Darfur but throughout Sudan. According to Amnesty International, since the uprising began in Sudan on 19 December 2018, more than 45 people have been killed, 180 have been injured, and over 2,600 people have been unlawfully detained. It is accurate though the prosecution of grave crimes such as genocide, war crimes and crimes against humanity is essentially symbolic more than administering genuine justice to a massive number of people.

Several weeks ago, rumours circulated among Sudanese activists and politicians regarding the possibility of a political compromise that could involve dropping charges against AL Bashir in exchange for Bashir to step down and for the sake of stability in Sudan. These speculations have come out as a result of an interview with a prominent Sudanese/ British national and businessman, Mo Ibrahim, where he stated that "Sudan's president Omar Al Bashir should step down in exchange for war crimes by the ICC being dropped".

The indictment of Al Bashir has divided the Sudanese into camps. On one side, the Darfuris, who have suffered a great deal of injustice, are asking for justice. For this group, Al Bashir’s prosecution is symbolic. Some Darfuris may have no idea where the Hague is, but the importance for them is that Al Bashir will be prosecuted by very powerful people.

On the other side of the debate, the elite in Khartoum think that having Al Bashir standing trial on foreign soil is a humiliation to the entire nation since there still remains the possibility of having him justly prosecuted in Sudan. The issue has become sensitive to the extent that some politicians in the North can't even express their positions explicitly because in doing so they seem complicit with Al Bashir.

Article 16 of the Rome Statute:

Under article 16 of the Rome Statute, the UN Security Council (hereinafter UNSC) has the authority to suspend investigations or prosecutions at any time for one year, and then the suspension is renewable. The Court also has the discretion to decide whether or not to continue the prosecution or not. Article 16 has been questioned by international non-governmental human rights organisations, in the sense that it considerably hinders the independence of the Court. So far, article 16 has not been judicially construed. It might be possible that if the UNSC invoked article 16, the Court could challenge the validity of such a resolution.

 The Office of the Prosecutor has reviewed article 16 in a policy paper within the context of the Rome Statute and accordingly recognised the role of the UNSC. However, based on its discourse, the prosecutor has concluded that there is a difference between the interests of peace and the interests of justice insinuating that there is a shared responsibility with the former concerns belonging to the UNSC and the latter to the Court.

Therefore, it is unlikely that the UNSC will invoke article 16, notwithstanding the fact that the situation in Sudan could constitute a threat to international peace and security. First, article 16 it has never been invoked by the UNSC. Second, it would serve no purpose regarding Al Bashir stepping down because it does not mean that the charges will be dropped, but instead be stopped for one year or more depending on the circumstances. Al Bashir has no reason to step down while knowingly the case is going to be opened a year after, when he has no government to defend him.  

Article 65 of the Rome Statute:

According to article 65 of the Rome Statute, there is a suggestion for plea-bargaining. However, what is deemed as plea-bargaining under this article is not precisely the same plea-bargaining in the sense of the American concept.  According to Black’s Law Dictionary, Plea-bargaining is "an agreement set up between the plaintiff and the defendant to come to a resolution about a case, without ever taking it to trial". Under this aforementioned article, Al Bashir could potentially plead guilty in exchange for a light sentence or more serious charges being dropped. However, given the nature and the character of the court, plea-bargaining is hardly viable. In effect, during the drafting of the Rome Statute there had been a debate concerning the guilty plea as a procedural technique, but there was no suggestion on its applicability before the Court. There might have been some negotiations between the Prosecutor and the Defense counsels, but this has never been revealed in the public record. Deciding a case based on a guilty plea might be sufficient. Nonetheless, for the victims, this might signify a sense of compromise rather than seeking justice. For instance, in both tribunals namely, the Yugoslavia Tribunal (ICTY) and Rwanda Tribunal (ICTR), although some defendants have pled guilty to serious crimes such as genocide and crimes against humanity no charges were been dropped, or sentences shortened considerably. During the ICTY trials, it has been concluded that plea-bargaining is incompatible with the objectives of international criminal justice. However, the question remains as to whether or not Al Bashir will ever plead guilty by trusting the Court.

Article 53 of the Rome Statute:

Under article 53 (1) (c) of the Rome Statute, the Prosecutor has the power to determine whether or not to stop the investigation or prosecution. However, this applies only when there exisits substantial evidence and a reasonable belief that the prosecution or investigation concerned might not serve the interest of justice. It has been a decade since the indictment and arrest warrant. The defendant continues to commit more crimes against the Darfuris and Sudanese in general. Hence, from a legal perspective, article 53 provides no possibility for dropping the charges or stopping the prosecution. Thus the Prosecutor will likely not rely on article 53.

Conclusion:

From a legal point of view, given the current circumstances and the nature of the crimes committed, the Prosecutor has no reasonable legal grounds to stop the prosecution in the case concerned.  Plea-bargaining might be a reasonable option for certain crimes, but not for serious or heinous crimes that involve a vast number of people who have been longing for justice for an incredibly long time. As a result it is unlikely that there will be any compromise, in particular, a legal one.

Based on the promise the Court has given to the victims, the primary reasons for the referral of the case to the court, the deterioration of the situation in Darfur in particular, and Sudan in general: If the UNSC invoked article 16, it would not only contradict itself, but it would be blatantly disregarding the tenets of international law. Furthermore, if this happens, it will create assumptions that the court is another neo colonialist tool.

Additionally, the Court is different from other ad hoc tribunals. While the Court is deemed to be an independent legal entity, the ad hoc tribunals are part of the UN organs because the UNSC has established them. Furthermore, the Court has from the very beginning maintained the approach that it is an independent entity and it has the mandate that authorises it to try any individuals no matter how powerful they are or what their backgrounds might be regardless. Notwithstanding this, the Court has been highly criticised, fundamentally for its universal nature and the downgrading of cultural differences.

Be that as it may, it is safe to say that the criticisms, the shortcomings of the Court and the withdrawing of some states parties are all part of the Court’s processes of development. In such a complex, globalised world, where states are still deemed to be the primary subjects, it is unrealistic to have an International Criminal Court without such imperfections.

Guest Post by Mohammed Elgizoly Adam.  Adam holds a Masters (LL.M) in Public International Law from Utrecht University. His experience includes working in the development sector in Darfur and Khartoum as well as working as a journalist for Free Press Unlimited (Radio Dabanga) in The Netherlands.