Countries Shipping Arms to Sudan May Violate Genocide Convention

NEW YORK—By naming Sudan’s president as a suspect in the commission of genocide in Darfur today, the Prosecutor for the International Criminal Court (ICC) has put countries providing arms to Sudan on notice that they are arming a potentially indicted war criminal, as well as likely violating the Genocide Convention, said Human Rights First.

ICC Prosecutor Luis Moreno Ocampo today referred President Bashir to the Court’s Pre-Trial Chamber I, and requested that the chamber issue a warrant for his arrest for his role in perpetrating genocide in Darfur from 2003-2008, resulting in deaths of more than 300,000 people. The prosecutor’s request for a warrant marks the end of the initial phase of what is thus far a three-year investigation into crimes committed in all of Darfur, as well as the first time a sitting president has been charged with genocide.

“The naming of Bashir as a suspect has dramatically altered the whole landscape of legal liability, considerably raising the stakes for those countries that continue to provide weapons to Sudan,” said Betsy Apple, director of Human Rights First’s Crimes Against Humanity program.

“These countries now face the stark decision whether they want to continue to provide the arms to a man who is facing indictment for genocide and thus put themselves at risk of violating the Genocide Convention,” added Apple, who oversees the Stop Arms to Sudan campaign, which raises public awareness of the dire implications for the crisis in Darfur of China’s arms-for-oil trade with Sudan.

The International Court of Justice recently ruled in the case of Bosnia v. Serbia that if a country learns that there is a serious risk of genocide, and it subsequently “fail[s] to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide,” it may be held legally liable for this failure under the 1949 Genocide Convention.

“The ICC Prosecutor also puts the onus on the world to do more than shrug its shoulders. This decision could and should galvanize the world to match its expressions of concern with concrete actions to halt arms transfers in order to put an end to the violence,” said Apple. “The Security Council, in particular, should expand the arms embargo to include all of Sudan, so the weapons do not end up in Bashir’s hands.”

The decision of if and how to pursue the case against Bashir now rests with the Chamber, which will assess whether there are reasonable grounds to charge the suspects with crimes committed within the jurisdiction of the Court. There is no fixed deadline for the Pre-Trial Chamber to issue warrants; in past cases, this process has taken up to two months.

There is considerable concern that the potential decision to prosecute Bashir could, in the immediate term, complicate the situation on the ground in Darfur. The prospect of prosecution might cause the Government of Sudan to further obstruct the deployment of peacekeeping forces, retaliate against humanitarian organizations in Darfur, or otherwise thwart international efforts to resolve the crisis in Darfur. It is entirely unclear, however, if and how Khartoum might retaliate, and it is well-known that the Government of Sudan has failed to cooperate with the international community thus far even before the prospect of additional prosecutions.

Recent history demonstrates that whenever short-term peace efforts are prioritized over justice, the people suffering from the conflict are the losers. Sudan is a case in point. Ahmed Harun, Sudan’s Minister of Humanitarian Affairs, is alleged to have committed war crimes and crimes against humanity against the people of Darfur. He has been charged by the ICC, but the Government of Sudan has failed to turn him over for trial, and the international community has not been sufficiently insistent that he be held to account for fear of endangering peace efforts. The result is that this man continues to be in charge of humanitarian assistance to Darfur.

“The notion that you can and even must forsake the pursuit of justice and accountability to achieve peace is based on a false and dangerous dichotomy,” said Apple. “We have seen in Northern Uganda, for example, that the arrest warrant for Joseph Kony brought him to the negotiating table. The failure to arrest him thus far has enabled him to regroup and commit more crimes. Peace and justice efforts really need to work hand-in-hand in order for the peace to be durable.

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Published on July 11, 2008

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