International Criminal Court’s Sudanese Jam

When the International Criminal Court (ICC) was established in 2002, critics said it would not achieve much. But ever since it issued its first warrant against a standing Head of State, Sudan’s president Omar al-Bashir, the so-called "court without teeth" has been accused of spoiling not only the peace process for Darfur, but also the North-South peace agreement signed in 2005.

"I think it was a big mistake," said Werner Fasslabend, President of the Austrian Institute for European and Austrian Security at a panel discussion on Apr. 24, organized by the Austrian Institute for International Foreign Affairs (ÖIIP) and the Austrian Diplomatic Academy (DA).

Two months after the ICC issued a warrant against Omar al-Bashir for war crimes and crimes against humanity, the standing government of the National Congress Party continues to deny the charges, while the rebel groups say they won’t negotiate because they don’t recognize Bashir’s administration as a legitimate party.

"The Khartoum regime is furious of this decision and consider it a humiliation and a bias against Sudan," said Djibril Yipènè Bassolé, Joint Chief Mediator for the United Nations, in another event at the Diplomatic Academy in Vienna on Apr. 22.

Mahid Ibrahim, Chairperson of the International Relations Committee of the Sudanese Parliament, said that the ICC, in concert with the "colonial powers," expected Sudan to fall into "creative chaos," aimed at pushing for a regime change.

"Sudan was expected to crumble under the sheer weight of the warrant," said Ibrahim, "but it brought people together more than ever."

But the Justice and Equality Movement (JEM), led by Khalil Ibrahim, refuse to negotiate with a president who will not be able to implement future accords, according to Bassolé.

He wants to bring all parties to the table of the current Doha peace process, but so far, it has been a lost cause as each group finds a reason to discredit the other. One of them, the Islamic leader in exile and former ally of Bashir, Hassan al-Tourabi, called for Bashir’s resignation after the ICC’s warrant was issued on Mar. 4.

The Abuja Peace Agreement for Darfur was signed in 2006 only by a splinter group of the Sudanese Liberation Army (SLA), but the other faction and JEM did not.

"The government is ready to talk but with whom?" said Sudan’s Foreign Minister, Mohamed El Samani El Waasila at the Diplomatic Academy. He added that the UN is spending millions to fly the rebels and bring them all together under one roof without avail.

To Abdallah al-Ashaal, legal expert and former assistant to the Foreign Minster of Egypt, Security Council resolution 1593, referring the case of Bashir to the ICC, is illegal.

He argued that the irregularity stems from Resolution 1422 of the Security Council according to which United States, a non-party of the Rome Statute, could ask for the deferral of a warrant against U.S. nationals working in peacekeeping operations. This resolution created a precedent by which the Security Council acquired powers beyond its mandate.

"It is unbelievable that the ICC has to violate the law to enforce it," said al-Ashaal.

The Americans wanted to manipulate the ICC through the Security Council (UNSC) but the international community is still in time to correct the rules of procedure without destroying the ICC, al-Ashaal explained.

But according Ferdinand Trauttmansdorff, Head of the International Law Department of the Austrian Foreign Ministry, the UNSC did not go against the rules of procedure because it issued the referral under Chapter VII, which sets out its power to restore international peace insecurity.

Even though Sudan is not a party of the Rome Statute, a resolution passed in the framework of Chapter VII obliges it to cooperate, as Sudan is a member of the UN.

The continuing conflict in Darfur could endanger the North-South Peace, known as the Comprehensive Peace Agreement (CPA) according to Georg Lennkh, Special Envoy for Africa of the MFA of Austria.

Despite the UN Secretary General’s warnings on Apr. 17 that the CPA is at risk, Ibrahim assured the public at the Diplomatic Academy that "the towns in Darfur are among the most peaceful in the world" and "there is no more conflict between North and South Sudan."

In October 2008, the BBC reported a Ukrainian ship carrying weapons and tanks was bound to South Sudan, signaling rearmament. If the CPA falls, the secession referendum to be held in 2011 will be in jeopardy the government of South Sudan. South Sudan is rich in oil and its distribution among the different ethnic groups is Sudan’s root of discord ever since its independence in 1956.

For Bassolé, peace was sacrificed for the sake of justice. All he can do now is try to "construct peace with those who want peace and impose it on the others."

Otherwise, Darfuris will continue to be hostages of the rebels and the government.