A Case Study on Genocide and Omar al-Bashir
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The international community has widely recognised genocide as one of the most abhorrent crimes that could be committed. Raphael Lemkin, who defined genocide during the Holocaust, wrote that “the conscience of mankind [was] shocked by this type of mass barbarity” and, initially, it did seem as though through a concerted united effort, it had become so condemned it would indeed never happen again. The crime of genocide was codified in 1948, with jus cogens status (meaning there is no defence to it), and the International Criminal Court was set up in 1998 with the purpose of prosecuting genocide (along with other crimes). The creation of the ICC was seen as a landmark victory for human rights activists, becoming the first permanent international law tribunal. However, it suffers from crippling weaknesses meaning that as a tool of enforcement it currently is much less effective than would be hoped. Devastatingly, often the political will to co-operate and promote the effective workings of the ICC is lacking among some of the major powers, leading to many difficulties with the enforcement of this vital element of human rights law.
One such weakness is continued US opposition to the court. One author, Goldsmith, has suggested that the diametrically opposed ICC and USA will lead to an overall reduction in the number of prosecutions for genocide. US opposition “runs deep”. Under the Trump administration this was heightened with sanctions being imposed on ICC officials to deter them from investigating its actions in Afghanistan. Whilst these have been lifted under Biden, the administration has remained in opposition to such investigations, as well as those into the Israeli-Palestinian conflict. In 2002, the American Servicemembers’ Protection Act (ASPA) was passed, allowing the US to use "all means necessary and appropriate" to release its personnel imprisoned by or on behalf of the Court. ASPA also “prohibits any cooperation with (including financial support for) the ICC … bars military aid to nations that support the ICC (except for NATO countries and other major allies)”. Not only is this a clear setback for the ICC, as international tribunals have been historically dependent on “United States political support, funding, and military”, but it also deters countries who are seeking aid from the US from cooperating with the ICC.
With this in mind, the ICC needs to ensure more international cooperation so that the lack of support from the US is not crippling. However, this may be hard to achieve because a major criticism of the ICC is that it unfairly targets African countries whilst ignoring crimes committed by western countries, leading some to say it is a tool of imperialism. Many African countries have considered withdrawing from the ICC due to this perceived focus on them, which could prevent further attempts at justice due to complications with extradition, among other things, and furthers the ICC’s international unpopularity. One way in which the ICC has been accused of focusing too much on African countries is through complementarity, a principle which states that the ICC is a court of last resort and it should only prosecute cases where the national courts are either “unwilling or unable genuinely” to prosecute themselves. It has been argued this could lead to resentment towards the ICC, who, to start prosecution, has “to put a state on trial for its perceived failure to prosecute an international crime” and effectively judge “that states are too weak to actively assert jurisdiction”. The Rwandan President has stated that it “undermine[s] people from poor and African countries, and other powerless countries”.
However, whilst it is upsetting for countries to be judged as incompetent in the eyes of the ICC, it could be argued that it is a necessary step to start prosecution. For victims it could be a relief that the court is dealing with a case that has not been addressed by the national courts, for whatever reason. Another criticism of the ICC might be their own “cynical political motives'', as an increased culture of distrust around the ICC could prevent them from being investigated themselves.
But, as Cowell notes, this has not stopped many criticisms of the ICC, with an AU “resolution adopted calling for member states to refuse cooperation with the ICC in the matter of Darfur singling out the Prosecutor for “making ... condescending statement[s]”. Therefore, policies such as complementarity increase the unpopularity of the ICC with many countries, which is a problem because it is often these countries that hide indicted individuals, and so the ICC is reliant on them for arrests and extradition.
A concrete example of the lack of international cooperation leading to difficulties in prosecuting genocide is the case of Omar al-Bashir, whose arrest warrant for genocide, crimes against humanity and war crimes was issued by the ICC in 2009. To date, he is still ‘at large’. He was the dictator of Sudan and was removed in 2019 following a coup. Due to the beliefs that the ICC was unfairly targeting the west, “the AU decided that … AU member states would not cooperate with the arrest and surrender of al-Bashir”. It also argued that the situation in Sudan was volatile and that by indicting the head of state, the ICC would be disrupting the peace process which the AU was working hard to promote. This is therefore a direct consequence of the unpopularity of the ICC with African countries. The President's visits to Chad and Kenya prompted the ICC to issue further statements asking for his arrest, to which the AU still resisted. He has now visited at least 33 countries without arrest, with some of these being signatories to the ICC but are actively refusing to commit to their obligations to arrest and extradite him to the Hague. Therefore, the ICC’s reliance on the cooperation of states is crucial to its prosecution process, a reliance which has greatly undermined its effectiveness through a lack of political cooperation.
The ICC, like most instruments of international law, operates effectively only through the political and diplomatic will of the international community. Being so dependent on the political will of countries means that the ICC essentially operates under significant restraints on its autonomy and supposed impartiality. Effective implementation of international human rights law will only be possible with better political advocacy on both national and the international stage.
The OHRSS has invited Oliver Windridge, a leading International Human Rights lawyer, to deliver a talk on his project, ‘Mapping al-Bashir’, in which he has documented the travels of the former dictator of Sudan. This will be occurring in Week 6 of Michaelmas Term 2023. If this article interests you, please feel free to listen to him speak more on this topic.
Author: Nina Sherwood
Raphael Lemkin, Genocide (1946) The American Scholar, Volume 15, Number 2
Jack Goldsmith, The Self-Defeating International Criminal Court (2003) The University of Chicago Law Review, Volume 70
Frederick Cowell, Inherent imperialism: understanding the legal roots of anti-imperialist criticism of the International Criminal Court (2017) Journal of International Criminal Justice, Volume 15
Gwen P. Barnes, The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir (2011), Fordham International Law Journal, Volume 34, Issue 6
Tom White, States ‘failing to seize Sudan’s dictator despite genocide charge’ (2018) The Guardian