News

REACTIONS TO REQUEST FOR BASHIR ARREST WARRANT

Oct 2008

Do not deprive Darfurians of their right of justice
by Salih Osman

Published: 6 October 2008 in “Business Day”

AS SOUTH Africans reflect on the legacy of Thabo Mbeki’s presidency, many have praised his foreign policy contributions.

They consider his work elsewhere in Africa to be the hallmark of his presidency. Unfortunately, few are aware of how his foreign policy has negatively affected the human rights of millions of Africans and SA’s reputation on the global stage.

SA’s current approach to the situation in Darfur is a prime example.

On March 31 2005, the United Nations Security Council decided, against all odds, to refer the crimes committed in Darfur to the newly created International Criminal Court. Amid the misery of the camps in Darfur and in eastern Chad, there were celebrations that day. Not only did Darfurians for the first time believe that justice could finally be done, after years of atrocities, rapes and killings, they were also safer. In the months following the announcement, there was a noticeable decline in the level of attacks on civilians, aerial bombardments were scaled back and the militias were curtailed in their violence.

However, as the nearly two years between the commencement of the investigation and the presentation of the first charges passed, the violence increased once again.

As the work of the court faded into the background, the climate of impunity, and the violence it breeds, returned.

The court initially focused on smaller players. Last year’s first indictments were against a government minister, Ahmad Haroun, and a janjaweed militia leader, Ali Kosheib. Darfurians were pleased to see that the court was working, but felt that
the indictments were too few, and aimed
too low.

Then, in July, everything changed. The prosecutor requested an arrest warrant for President Omar al-Bashir himself, for crimes against humanity and genocide. The head of state had been called to account for the atrocities suffered in Darfur.

Yet even before the announcement was made, some expressed doubt about its effect. They argued that justice should be taken off the table in case even more violent mayhem was unleashed.

The danger may be real — the recent killing of dozens at Kalma camp in south Darfur, mostly women and children, reminds us that violence is ever-present. However, further violence and threats of violence should never be accepted to bargain away justice.

In July, SA and Libya led an attempt to insist that the Security Council should order the International Criminal Court to stop its work. That bid was thwarted, for the moment at least.

Now, however, another idea is gaining popularity among some European and African governments alike — that a few months of good behaviour by Bashir might be enough to let him off the hook.

Recently, while still president, Mbeki travelled to Sudan and issued a statement arguing that the proposed arrest warrant would undermine lasting peace in Sudan. If only we can tempt Bashir to co-operate with the UN for the first time, the argument runs, who cares about responsibility for the hundreds of thousands who already lost their lives in this conflict, and millions more driven from their homes?

The answer is that Darfurians will care. And so should anybody who cares about Darfur. Darfurians do not have peace (there is no peace process in Darfur) and they do not have security, they cannot now be asked to give away justice as well. Contrary to Mbeki’s statement, most of the displaced see justice as a precondition for return and for lasting peace. Indeed, there will be no peace and no security in Darfur without accountability.

Theoretically, the deal which governments now seem so eager to agree on would be valid for a mere 12 months. But the chances that the immunity would then be renewed are dangerously high.

That would be an insult to the people of Darfur, and to victims of human rights abuses worldwide. If there is no accountability for Darfur, that will set a dangerous precedent at the council, which tyrants of the future far beyond Darfur and Sudan will be eager to repeat. The preventive and the punitive power of the court will be immeasurably damaged.

Darfurians wish to live in peace. After what we have lived through, how could we not? But to do so we need the support of the international community, much as South Africans did to overcome apartheid. Unfortunately, the international community has failed to give necessary material and political support to peacekeeping troops on the ground or to peace negotiators.

Now it risks turning away from justice as well. If the Security Council decides to override the prosecutor’s attempt to gain accountability for these crimes, that will be the international community’s most shameful act of all.

n Osman is a lawyer from Darfur and a member of the Sudanese parliament. Last year he was awarded the Sakharov Prize for Freedom of Thought.

The arrest of Sudan’s Bashir should proceed

By Richard Holbrooke

Published: September 21 2008 17:57

The request from the International Criminal Court prosecutor for an arrest warrant for Omar al-Bashir, Sudan’s president, caused much hand-wringing by diplomats and others who say the search for justice will derail peace negotiations or endanger humanitarian relief workers. Fearing that the crisis in Darfur will worsen if the prosecutor is allowed to proceed, they have launched an ill-considered campaign at the United Nations Security Council to delay the court’s proceedings, perhaps for a year. The very nations that created the ICC appear to be afraid to let it do its work. A vote for deferral might come as early as next month.

For me, this is familiar terrain. When Radovan Karadzic and General Ratko Mladic, the Bosnian Serb leaders, were indicted by the Yugoslav tribunal in July 1995 for orchestrating atrocities in Bosnia, the media and many diplomats lamented that we would be unable to negotiate peace for Bosnia. Less than five months later, an agreement was reached in Dayton to end the war.

What had seemed an insurmountable obstacle turned out to be an unexpected opportunity. Before the indictments, we had already decided to marginalise Gen Mladic and Mr Karadzic and force Slobodan Milosevic, the Serbian president, to take full responsibility for the war. Our negotiating team met them only once – in a hunting villa just outside Belgrade in September 1995 – but only with a prior understanding that Mr Milosevic would be responsible for their conduct, and only to lift the three-year siege of Sarajevo, which we accomplished that night. Later, when Mr Milosevic insisted that to achieve peace the two men had to participate in negotiations, I offered to arrest them personally if they set foot in the US.

Their removal from negotiations helped greatly in our success even though Mr Karadzic, forced by Mr Milosevic to sign the Dayton agreement, must have known it would end his political career. After he stepped down he invented a fable that I – and later Madeleine Albright – made deals with him that Nato would not pursue him. This wholly fabricated story, coming from a war criminal who also said the Muslims bombed their own marketplace in Sarajevo to lure Nato into war, is grotesque.

The key point is that the pariah status created by the indictment contributed to resolving the conflict and creating a more stable situation in Bosnia. The tragedy was not that these evil men were indicted; it was that it took almost 13 years to arrest Mr Karadzic and that Gen Mladic is still at large.

The US and the European Union confront a similar issue with Darfur. In 2005, the Security Council determined that offering impunity was a threat to peace. It referred the situation to the ICC prosecutor, who announced that the evidence pointed to the top of Sudan’s government. Suddenly, some Council members backed away from their earlier stance. In a routine resolution to extend the mandate of the Darfur peacekeeping mission, they added a statement of “concern” about the prosecutor’s request and promised to raise the issue again.

The US abstained, neither wishing to veto the mission nor wanting to support anything leading to a delay in the prosecution of Mr Bashir. China, Russia and others argued that an arrest warrant against Mr Bashir would frustrate peace prospects and jeopardise humanitarian workers. In October, these countries plan to ask the Security Council to defer the ICC’s investigations for a renewable 12-month period.

Those advocating this step argue that it would give negotiators leverage to produce results in Darfur. Yet they have never produced evidence for this, nor defined what the benchmark for success would be at the end of the 12 months. Mr Bashir is simply playing for time, offering nothing. Mr Milosevic did the same. Give Mr Bashir a year and he will take it – and ask for more.

The US and the EU must resist efforts to suspend ICC prosecutions. Peace negotiations have been stalled for nearly a year for reasons unrelated to a possible warrant against Mr Bashir. Suspension may seem a safer course to follow in the short run, but it will embolden him and other future suspected war criminals.

Bringing perpetrators of international crimes to justice is undeniably difficult when trying simultaneously to end a conflict, but it is the right choice. War criminals should know that they can run but – as the evil Mr Karadzic ultimately learnt – sooner or later they will be brought to justice.

The writer is former special envoy for the Balkans, former US ambassador at the United Nations and is a supporter of Barack Obama

Copyright The Financial Times Limited 2008

------------------------------------------------------
Justice v. Politics
By Louise Arbour
International Herald Tribune (http://www.iht.com/articles/2008/09/16/opinion/edarbour.php)
Tuesday, September 16, 2008

When I announced the indictment of Slobodan Milosevic on May 27, 1999, at the height of the armed conflict between Serbia and NATO troops in Kosovo, many were dismayed.

The conventional wisdom at the time was that the indictment by the International Criminal Tribunal for the Former Yugoslavia, where I was chief prosecutor, would make the situation in Kosovo worse. Some said it would likely prove fatal to the prospect of any compromise by Milosevic - that I had killed the chance for peace.

Predictably, Milosevic was contemptuous of the indictment and vowed that he would never face trial in The Hague…

Yet only a week later, Milosevic accepted the terms of a peace agreement and the war ended that month. Eighteen months later, a popular uprising swept Milosevic from office and he arrived in The Hague soon thereafter to face justice.

If the United Nations Security Council had had the authority to stop my indictment, things might have ended differently. And that's precisely the issue now at the center of a storm of controversy at the Security Council. How it is resolved will have serious implications for the International Criminal Court (ICC) and for the cause of international justice.

Not long after the ICC prosecutor announced he was seeking an arrest warrant against Sudan's President Omar al-Bashir for orchestrating a genocidal campaign in Darfur, diplomats and political observers predicted the worst. President Bashir denounced the prosecutor's request and rejected the authority of the ICC altogether.

Within days the African Union and Organization of Islamic Conference called on the Security Council to defer the case against Bashir, claiming it thwarted prospects for peace.

They also feared retaliation against peacekeepers and humanitarian workers in Sudan. Nearly half of the Security Council has expressed support for a deferral.

The ICC statute does empower the Security Council to defer the ICC process. But such power was intended to be used extremely rarely, and then only to promote justice, not to prevent it from running its course.

The ICC was founded on the principle that accountability for the world's most serious crimes is a prerequisite for long-term peace and security. It is presumably with that in mind that the Security Council referred to Darfur case to the ICC in the first place in 2005.

The assumption should be, as the Milosevic precedent has illustrated, that judicial and political processes can be allowed to advance simultaneously and independently of each other. The goal should be to preserve the integrity of both the judicial and the political track, and, most important, to avoid the politicization of the court. Justice is a partner to peace, not an impediment to it.

To use a deferral for mere political convenience - or worse, to appease the threats of tyrants - would undermine the fledgling court. There is little hope for the promotion of the rule of law internationally if the most powerful international body makes it subservient to the rule of political expediency.

The past decade has seen tremendous advances in showing abusive leaders that their crimes will have consequences. Since the mid-1990s, for the first time in history, former heads of state have actually been brought to trial for human rights crimes.

To put ICC proceedings on hold in Darfur would send a dangerous signal to would-be war criminals that justice is negotiable and the Security Council can be held hostage to their threats.

The ICC has the ability to bring charges in real time, while conflicts are ongoing. This is not the first time, nor is it the last time, that we will face the question of whether justice interferes with peace. Indeed, these issues will arise more and more frequently. And it will often be very tempting to suspend justice in exchange for promises to end a conflict.

But if the Security Council decides in the coming weeks to interfere with court proceedings, it will vindicate those who believe politics can trump justice. That will undermine the progress the world has made so far in bringing the most powerful human rights abusers to justice for their crimes.

Louise Arbour is the former United Nations High Commissioner for Human Rights.

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News Browse by Region Media Digests Country Updates UN Excerpts on the ICC Updates of the Assembly Browse by Region		REACTIONS TO REQUEST FOR BASHIR ARREST WARRANT Oct 2008 Do not deprive Darfurians of their right of justice by Salih Osman Published: 6 October 2008 in “Business Day” AS SOUTH Africans reflect on the legacy of Thabo Mbeki’s presidency, many have praised his foreign policy contributions. They consider his work elsewhere in Africa to be the hallmark of his presidency. Unfortunately, few are aware of how his foreign policy has negatively affected the human rights of millions of Africans and SA’s reputation on the global stage. SA’s current approach to the situation in Darfur is a prime example. On March 31 2005, the United Nations Security Council decided, against all odds, to refer the crimes committed in Darfur to the newly created International Criminal Court. Amid the misery of the camps in Darfur and in eastern Chad, there were celebrations that day. Not only did Darfurians for the first time believe that justice could finally be done, after years of atrocities, rapes and killings, they were also safer. In the months following the announcement, there was a noticeable decline in the level of attacks on civilians, aerial bombardments were scaled back and the militias were curtailed in their violence. However, as the nearly two years between the commencement of the investigation and the presentation of the first charges passed, the violence increased once again. As the work of the court faded into the background, the climate of impunity, and the violence it breeds, returned. The court initially focused on smaller players. Last year’s first indictments were against a government minister, Ahmad Haroun, and a janjaweed militia leader, Ali Kosheib. Darfurians were pleased to see that the court was working, but felt that the indictments were too few, and aimed too low. Then, in July, everything changed. The prosecutor requested an arrest warrant for President Omar al-Bashir himself, for crimes against humanity and genocide. The head of state had been called to account for the atrocities suffered in Darfur. Yet even before the announcement was made, some expressed doubt about its effect. They argued that justice should be taken off the table in case even more violent mayhem was unleashed. The danger may be real — the recent killing of dozens at Kalma camp in south Darfur, mostly women and children, reminds us that violence is ever-present. However, further violence and threats of violence should never be accepted to bargain away justice. In July, SA and Libya led an attempt to insist that the Security Council should order the International Criminal Court to stop its work. That bid was thwarted, for the moment at least. Now, however, another idea is gaining popularity among some European and African governments alike — that a few months of good behaviour by Bashir might be enough to let him off the hook. Recently, while still president, Mbeki travelled to Sudan and issued a statement arguing that the proposed arrest warrant would undermine lasting peace in Sudan. If only we can tempt Bashir to co-operate with the UN for the first time, the argument runs, who cares about responsibility for the hundreds of thousands who already lost their lives in this conflict, and millions more driven from their homes? The answer is that Darfurians will care. And so should anybody who cares about Darfur. Darfurians do not have peace (there is no peace process in Darfur) and they do not have security, they cannot now be asked to give away justice as well. Contrary to Mbeki’s statement, most of the displaced see justice as a precondition for return and for lasting peace. Indeed, there will be no peace and no security in Darfur without accountability. Theoretically, the deal which governments now seem so eager to agree on would be valid for a mere 12 months. But the chances that the immunity would then be renewed are dangerously high. That would be an insult to the people of Darfur, and to victims of human rights abuses worldwide. If there is no accountability for Darfur, that will set a dangerous precedent at the council, which tyrants of the future far beyond Darfur and Sudan will be eager to repeat. The preventive and the punitive power of the court will be immeasurably damaged. Darfurians wish to live in peace. After what we have lived through, how could we not? But to do so we need the support of the international community, much as South Africans did to overcome apartheid. Unfortunately, the international community has failed to give necessary material and political support to peacekeeping troops on the ground or to peace negotiators. Now it risks turning away from justice as well. If the Security Council decides to override the prosecutor’s attempt to gain accountability for these crimes, that will be the international community’s most shameful act of all. n Osman is a lawyer from Darfur and a member of the Sudanese parliament. Last year he was awarded the Sakharov Prize for Freedom of Thought. The arrest of Sudan’s Bashir should proceed By Richard Holbrooke Published: September 21 2008 17:57 The request from the International Criminal Court prosecutor for an arrest warrant for Omar al-Bashir, Sudan’s president, caused much hand-wringing by diplomats and others who say the search for justice will derail peace negotiations or endanger humanitarian relief workers. Fearing that the crisis in Darfur will worsen if the prosecutor is allowed to proceed, they have launched an ill-considered campaign at the United Nations Security Council to delay the court’s proceedings, perhaps for a year. The very nations that created the ICC appear to be afraid to let it do its work. A vote for deferral might come as early as next month. For me, this is familiar terrain. When Radovan Karadzic and General Ratko Mladic, the Bosnian Serb leaders, were indicted by the Yugoslav tribunal in July 1995 for orchestrating atrocities in Bosnia, the media and many diplomats lamented that we would be unable to negotiate peace for Bosnia. Less than five months later, an agreement was reached in Dayton to end the war. What had seemed an insurmountable obstacle turned out to be an unexpected opportunity. Before the indictments, we had already decided to marginalise Gen Mladic and Mr Karadzic and force Slobodan Milosevic, the Serbian president, to take full responsibility for the war. Our negotiating team met them only once – in a hunting villa just outside Belgrade in September 1995 – but only with a prior understanding that Mr Milosevic would be responsible for their conduct, and only to lift the three-year siege of Sarajevo, which we accomplished that night. Later, when Mr Milosevic insisted that to achieve peace the two men had to participate in negotiations, I offered to arrest them personally if they set foot in the US. Their removal from negotiations helped greatly in our success even though Mr Karadzic, forced by Mr Milosevic to sign the Dayton agreement, must have known it would end his political career. After he stepped down he invented a fable that I – and later Madeleine Albright – made deals with him that Nato would not pursue him. This wholly fabricated story, coming from a war criminal who also said the Muslims bombed their own marketplace in Sarajevo to lure Nato into war, is grotesque. The key point is that the pariah status created by the indictment contributed to resolving the conflict and creating a more stable situation in Bosnia. The tragedy was not that these evil men were indicted; it was that it took almost 13 years to arrest Mr Karadzic and that Gen Mladic is still at large. The US and the European Union confront a similar issue with Darfur. In 2005, the Security Council determined that offering impunity was a threat to peace. It referred the situation to the ICC prosecutor, who announced that the evidence pointed to the top of Sudan’s government. Suddenly, some Council members backed away from their earlier stance. In a routine resolution to extend the mandate of the Darfur peacekeeping mission, they added a statement of “concern” about the prosecutor’s request and promised to raise the issue again. The US abstained, neither wishing to veto the mission nor wanting to support anything leading to a delay in the prosecution of Mr Bashir. China, Russia and others argued that an arrest warrant against Mr Bashir would frustrate peace prospects and jeopardise humanitarian workers. In October, these countries plan to ask the Security Council to defer the ICC’s investigations for a renewable 12-month period. Those advocating this step argue that it would give negotiators leverage to produce results in Darfur. Yet they have never produced evidence for this, nor defined what the benchmark for success would be at the end of the 12 months. Mr Bashir is simply playing for time, offering nothing. Mr Milosevic did the same. Give Mr Bashir a year and he will take it – and ask for more. The US and the EU must resist efforts to suspend ICC prosecutions. Peace negotiations have been stalled for nearly a year for reasons unrelated to a possible warrant against Mr Bashir. Suspension may seem a safer course to follow in the short run, but it will embolden him and other future suspected war criminals. Bringing perpetrators of international crimes to justice is undeniably difficult when trying simultaneously to end a conflict, but it is the right choice. War criminals should know that they can run but – as the evil Mr Karadzic ultimately learnt – sooner or later they will be brought to justice. The writer is former special envoy for the Balkans, former US ambassador at the United Nations and is a supporter of Barack Obama Copyright The Financial Times Limited 2008 ------------------------------------------------------ Justice v. Politics By Louise Arbour International Herald Tribune (http://www.iht.com/articles/2008/09/16/opinion/edarbour.php) Tuesday, September 16, 2008 When I announced the indictment of Slobodan Milosevic on May 27, 1999, at the height of the armed conflict between Serbia and NATO troops in Kosovo, many were dismayed. The conventional wisdom at the time was that the indictment by the International Criminal Tribunal for the Former Yugoslavia, where I was chief prosecutor, would make the situation in Kosovo worse. Some said it would likely prove fatal to the prospect of any compromise by Milosevic - that I had killed the chance for peace. Predictably, Milosevic was contemptuous of the indictment and vowed that he would never face trial in The Hague… Yet only a week later, Milosevic accepted the terms of a peace agreement and the war ended that month. Eighteen months later, a popular uprising swept Milosevic from office and he arrived in The Hague soon thereafter to face justice. If the United Nations Security Council had had the authority to stop my indictment, things might have ended differently. And that's precisely the issue now at the center of a storm of controversy at the Security Council. How it is resolved will have serious implications for the International Criminal Court (ICC) and for the cause of international justice. Not long after the ICC prosecutor announced he was seeking an arrest warrant against Sudan's President Omar al-Bashir for orchestrating a genocidal campaign in Darfur, diplomats and political observers predicted the worst. President Bashir denounced the prosecutor's request and rejected the authority of the ICC altogether. Within days the African Union and Organization of Islamic Conference called on the Security Council to defer the case against Bashir, claiming it thwarted prospects for peace. They also feared retaliation against peacekeepers and humanitarian workers in Sudan. Nearly half of the Security Council has expressed support for a deferral. The ICC statute does empower the Security Council to defer the ICC process. But such power was intended to be used extremely rarely, and then only to promote justice, not to prevent it from running its course. The ICC was founded on the principle that accountability for the world's most serious crimes is a prerequisite for long-term peace and security. It is presumably with that in mind that the Security Council referred to Darfur case to the ICC in the first place in 2005. The assumption should be, as the Milosevic precedent has illustrated, that judicial and political processes can be allowed to advance simultaneously and independently of each other. The goal should be to preserve the integrity of both the judicial and the political track, and, most important, to avoid the politicization of the court. Justice is a partner to peace, not an impediment to it. To use a deferral for mere political convenience - or worse, to appease the threats of tyrants - would undermine the fledgling court. There is little hope for the promotion of the rule of law internationally if the most powerful international body makes it subservient to the rule of political expediency. The past decade has seen tremendous advances in showing abusive leaders that their crimes will have consequences. Since the mid-1990s, for the first time in history, former heads of state have actually been brought to trial for human rights crimes. To put ICC proceedings on hold in Darfur would send a dangerous signal to would-be war criminals that justice is negotiable and the Security Council can be held hostage to their threats. The ICC has the ability to bring charges in real time, while conflicts are ongoing. This is not the first time, nor is it the last time, that we will face the question of whether justice interferes with peace. Indeed, these issues will arise more and more frequently. And it will often be very tempting to suspend justice in exchange for promises to end a conflict. But if the Security Council decides in the coming weeks to interfere with court proceedings, it will vindicate those who believe politics can trump justice. That will undermine the progress the world has made so far in bringing the most powerful human rights abusers to justice for their crimes. Louise Arbour is the former United Nations High Commissioner for Human Rights.