Not About Justice: Ocampo, Al-Bashir and the ICC

By Mohamed El Mokhtar Sidi Haiba

The rationale put forward by the prosecutor Luis Moreno Ocampo for rushing with his indictment against the sitting head of state of a sovereign nation was allegedly the imprescriptible crime of ongoing genocide. The judges of the International Criminal Court, or ICC, found though, in their majority opinion, that there was no tangible proof for such a serious claim in spite of all the allegations that were leveled against Al Bashir and his camp on that specific account.

Moreover, the atrocities in question were committed between 2003 and 2004 and by all parties, although on an unequal basis, giving the natural gap in resources and manpower existing between the belligerents. Today the UN data from Genocide Intervention Network, etc., indicates that about 150 people or so are being killed every month. Such figure is certainly gruesome but does not, even remotely, amount to that of ongoing wide scale genocide. Furthermore, these numbers do not uniquely result from the criminal action of one side in the Darfur conflict. The victims of this conflict have been mostly innocent civilians and people responsible for those crimes should certainly be brought to justice but the timing and mechanism for such a process are of the utmost importance.

Therefore, for the sake of peace and stability, other considerations ought to be weighed against those of the trial, if the overall goal of all this frenzy for justice was, in indeed, the welfare of the people of Sudan and not something of an entirely different nature. But are the motivations of Ocampo, or the ICC, of a purely ethical order, in other words, is their thirst for justice here entirely devoid of manipulations, and not primarily political in their nature? I will tentatively try, in this modest essay, to shed a light of understanding in this peculiar case so as to better probe its legal validity and explore its wider political ramifications?

First of all, there is a complex negotiated democratic transition currently underway between the Northern government and the former Southern rebels (SPLM) who have been brought against all odds, into a government of national unity, miraculously ending more than twenty years of bloody civil war. Such a process still remains extremely fragile and requires cooperation between the existing government, the former rebels and the international community altogether. The eagerness to bring one man to justice may very well in this case have a serious downside risk, the least of which is a renewed civil war or a reversion to an even harsher dictatorship and, last but not least, the imperilment of a huge humanitarian operation providing assistance to millions of people urgently in need of help.

Why Sudan?

The obsession of the ICC with Sudan doesn’t stem primarily from the desire to uphold justice in this war-torn country in dire need, most of all, for long term stability and sustainable peace. On the contrary, it has a lot to do with politics, ideology and geostrategic economic interests. Had the Sudan been, for instance, a friendly puppet state of the West, like many others in the region, had it recognized the state of Israel, opened wide its borders to evangelical missionaries and generously signed contracts with Chevron and Exxon, would the obsession with human rights issues and the desire to bring El Bashir to justice be still the same? Certainly not.

In fact, for many years, Sudan has been a designated target of foreign immixtions for several reasons. Its unconventional ideological system of government (Political Islam), and ties with internally banned  groupuscules, its geostrategic position (the vital route through which the Nile crosses before feeding the strategic Arab nation of Egypt) and its natural riches (water, minerals, and more recently, oil) makes it a constant focal point for the insatiable appetite and unwanted intrusions of Western powers, the US in particular, strategically bent on preventing other growing powerful rivals, like China, from expanding their access to or hegemony in oil-rich Africa. What could be more important, for the US and Israel, than a strategic launching pad, in Southern Sudan, from where they can further tighten, if they so choose, a noose around Egypt that will insure a total control over its unique access to water, the Nile, and keeps it, thus, dependent for a resource as vital as water on their sole whimsical indulgence? It has a vast territory with a multiplicity of borders with sub-Saharan Africa and, in the South again, an ideal competitive target between Islamic preachers and Christians missionaries: a population partly animist ‘waiting to be converted’.

For these reasons, Sudan will continue to be a potentially important strategic asset that will remain a constant target, with or without Al Bachir, as long as its leaders are not willing to compromise on the nature of their political system and their strategic external alliances.

Why Not the Others?

Could the desire of Luis Moreno Ocampo-a known stakeholder in the Israeli firm Global CST and an indirect beneficiary of juicy subcontracts from the Pentagon for many years-to see justice prevail be extended, for instance, to the victims of war crimes in Palestine, Iraq, Lebanon or Chechnya? Could he dare include in his crusade for justice a Chinese leader or even an African dictator, not yet in disgrace, like Paul Kagame of Rwanda? Certainly not, for the ICC despite its theoretical independence remains largely an impotent body.

Such an institution is alas, for the most part, an empty shell entirely dependent on the consensual will of the permanent members of the Security Council. Its limitations can be, thus, revealed at will through the shifting whims of one of those permanent members or the predisposition to manipulation of one or more of its, not so independent, judges. Or, the combination of both. The proof that the International Criminal Court is perhaps no more than an instrument devised primarily to punish or scare away the weak and less powerful of this world, who happen to fall in disgrace in the eyes of their Western benefactors, can be clearly seen in the utter disdain shown to it by the former occupant of the White House. Even though, President Bill Clinton signed the statute of Roma of the ICC on December 31st, his successor, the President George W. Bush, quickly rushed to nullify it on May 6, 2002.

He, not only nullified it but, more importantly, tried to conclude with other states bilateral agreements of immunity, allegedly based on the article 98 of the Rome statute, for the sole purpose of shielding American citizens and military personnel from any potential prosecution emanating from that jurisdiction. Another manifestation of Bush’s crusade against the ICC is the adoption of two bills by the Congress, i.e., the American Service Members’ Act and the amendment Nethercutt’s Amendment.

The Asp, adopted by the Congress on August 2002, contains provisions restricting cooperation of the US with the ICC and the amendment, offered, on July 15, 2004, by Rep. George Nethercutt (a Republican from Washington State), would cut Economic Support Fund aid to all countries that belong to the International Criminal Court (ICC) but have not signed a bilateral immunity agreement (BIA) with the U.S. The amendment reads as follow: “None of the funds made available in this Act in title II under the heading “ECONOMIC SUPPORT FUND” may be used to provide assistance to the government of a country that is a party to the International Criminal Court and has not entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country.”

In conclusion, the obsession of Ocampo with Al bashir’s case and its unwillingness to even discuss the possibility of opening other more prominent cases is just another reminder and ugly expression of a bitter reality: the selective and arbitrary nature of an international judicial system that unashamedly spares the powerful, without remorse, and, mercilessly, crashes the weak with outright disdain and blind arrogance.

The inequity of such ‘legal’ order will remain as such, i.e., a permanent moral stain in the collective conscious of humanity, as long as its only expiatory victims are the Bashirs of this world and not  for once the Blairs and other no less guilty Livnis, Baraks and Olmerts of this so unequal and unfair world!

– Mohamed El Mokhtar Sidi Haiba political analyst. He contributed this article to

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