It is a busy week for criminal justice and for Sudan in particular. On Monday, the Kenyan High Court issued a domestic arrest warrant against Sudanese President Omar al-Bashir. Today, Friday 2nd of December 2011, Luís Moreno-Ocampo requested the Pre-Trial Chamber I of the ICC to issue an arrest warrant for the Sudanese Minister of Defence, Abdelrahim Mohamed Hussein. After warrants had been issued for the then Minister of State for the Interior, Ahmad Muhammad Haroun, and Janjaweed leader Ali Kushayb in 2007 as well as for Sudanese President Omar al-Bashir in 2009 and 2010, this is the fifth arrest warrant that the Chief Prosecutor pursues in the Darfur case (three rebel commanders that were allegedly responsible for an attack on an African Union Mission in Sudan based in Haskanita all received summonses to appear). The application for a warrant of arrest for Hussein includes charges of war crimes and crimes against humanity committed in Western Darfur from August 2003 to March 2004. Hussein was Minister of the Interior during that time and was in charge of the Darfur file as Representative of the President in Darfur. Hussein in turn appointed Haroun as Head of the Darfur Security Desk. The Office of the Prosecutor (OTP) has thus now indicted the entire chain of command for atrocities allegedly committed in Darfur. It starts with the Janjaweed leaders on the ground that allegedly implemented the orders coming from the Government of Sudan, represented by Ali Kushayb. It then moves up through Haroun, who allegedly coordinated the Janjaweed attacks, and Hussein, who was in charge of Darfur in the Government of Sudan, all the way to the top until reaching President al-Bashir, who allegedly condoned and steered the whole campaign.
For those not familiar with the Darfur conflict, the Government of Sudan has been accused of orchestrating a brutal counter-insurgency campaign targeting the alleged supporters of ‘African’ rebel groups in Darfur who took up arms against the ‘Arab’ domination of Sudan and Darfur. The Government of Sudan allegedly recruited Arab militias, the so-called Janjaweed, to attack ‘African’ villages and displace their inhabitants. The Sudanese Armed Forces were either directly involved in the attacks with ground troops or supported the Janjaweed with gunships and Antonov planes bombing the villages. Hussein is accused of overseeing these government operations in Western Darfur.
The indictment of Hussein does not come as a big surprise. The OTP had already announced publicly that it was conducting a third phase of investigations in Darfur. Hussein’s role in the Sudanese counter-insurgency campaign in Darfur was also widely known before today’s application for an arrest warrant. Human Rights Watch included him on a list of national government officials responsible for atrocities in Darfur in December 2005. Indeed, many experts doubted the wisdom of directly indicting President al-Bashir instead of taking somebody further down the chain of command first. Chances are that the ICC could have received support from the African Union for an arrest warrant against the Minister of Interior if it had not rushed for the grand price by indicting al-Bashir. Instead the al-Bashir warrants caused a rift between the ICC and the African Union that complicated the Court’s work in later cases like Kenya and Libya. I doubt that the OTP was completely surprised by the strong reactions. Staff members told me that they think the international community did not react to remarks by Moreno-Ocampo that he was moving up the chain of command because nobody was expecting him to go directly for the President.
Why take the step to indict President al-Bashir if a controversial reaction was to be expected? The answer is simple: Moreno-Ocampo started pursuing a strategy of public shaming against the Government of Sudan after he failed securing the arrests of Haroun and Kushayb. In this context, going for a public arrest warrant including the crime of genocide against the head of state was an extreme but logical choice. This strategy has again been confirmed in the OTP announcement concerning the warrant for Hussein. It says: ‘After careful consideration, the Office of the Prosecutor has decided to publicly seek a warrant against Mr. Hussein to encourage further public focus on Government of the Sudan policy and actions, and promote cooperation […].’ After the Darfur conflict had been increasingly overshadowed by developments in Libya and Syria, the Office of the Prosecutor apparently decided it was time to heighten the pressure on Sudan again. The application for a warrant notably comes shortly before Moreno Ocampo’s next briefing on the Darfur case at the UN Security Council on December 15th.
Moreno Ocampo’s motivations behind pursuing the new warrant are not hard to guess. First, he wants to show that the ICC has not lost the tug-of-war with al-Bashir. After visits by the President to several Member States of the ICC, the Court had started looking like a toothless institution. The warrant is an announcement that the ICC is not giving up on Darfur. Second, as shown above, indicting Hussein is the logical conclusion of the investigations so far carried out in Darfur since the warrants would now cover the whole chain of command involved. Ocampo did not want to leave unfinished business, he was also eyeing his legacy at the ICC in the Darfur case when applying for this warrant. Third, and in a similar vein, Moreno-Ocampo might be reacting to some of the criticism leveled against the Court during its Darfur investigations. Jumping directly to al-Bashir had been a controversial decision. Indeed, Human Rights Watch recently called on Moreno-Ocampo to indict senior officials below President al-Bashir in a critical report about his legacy at the OTP, again explicitly naming Hussein. In many ways the Darfur investigations during the era of Moreno-Ocampo came to their logical conclusion through this application for a warrant of arrest for the Minister of Defence.
That the warrant could change anything about the lack of cooperation of the Government of Sudan or could serve to focus international pressure on Sudan is doubtful though. The European debt crisis and the situations in Iran and Syria are currently binding most resources of the international community. Considering its history of sucessfully deceiving the international community for years, I doubt that the Government of Sudan is too worried that the new warrant could lead to some kind of coordinated action by the international community at the moment.