Prosecuting International Crimes in Africa - PULP - University of ...

146 Chapter 6
However, with the advent of the International Criminal Tribunal for
the Former Yugoslavia (ICTY), the indictment and transfer of Slobodan
Milosevic and Radovan Karadzic to the ICTY, and most recently the
indictment and issuance of an arrest warrant for Sudan’s President Al
Bashir, lawyers and political scientists alike have had to re-examine their
traditional conceptions about each other’s role and place in international
relations. Indeed, somewhere on the fault-lines of law and politics a
number of publications are already sprouting, seeking to tackle the idea
that there is more to international criminal justice than law and that there
is more to international political relations than the power pragmatics of
everyday reality. This chapter is one such publication, seeking to urge both
lawyers and political scientists to face up to the political reality of
international criminal justice and, vice versa, the legal reality of
international politics. Through an examination of the ICC’s experience
with the Sudanese President, in particular the African Union’s (AU)
dissatisfaction with his indictment, what has been considered as the
politics of the indictment, this chapter emphasises the need for lawyers and
political scientists to attempt to synchronise their work. The analysis is
hybrid in nature, drawing from the disciplines of law and political science,
and is therefore a challenge to lawyers, calling on them to unpack
controversial factual issues and in so doing, add to their understanding of
the complex non-legal factors that are at play in international criminal
justice. Likewise, it is a challenge to political scientists to pay more
attention to legal phenomena that are often at play and likely to influence
political processes. It is only through a meeting of minds by scholars,
practitioners and policy makers from these two fields that sound judgments
grounded in law and political reality may be reached and successfully
implemented.
2 Background
In July 2008, the prosecutor of the International Criminal Court (ICC),
Luis Moreno-Ocampo, accused Sudanese President Hassan Omar Al
Bashir of genocide, crimes against humanity and war crimes in Darfur and
requested the issuing of an arrest warrant against the sitting head of state.
The AU together with Organization of the Islamic Conference sought to
block this action by requesting the United Nations Security Council to
defer ICC proceedings for twelve months in accordance with article 16 of
the Rome Statute, a request which has to date remained unanswered. 2 The
Court issued an arrest warrant for Al Bashir on 4 March 2009 for the
commission of war crimes and crimes against humanity but ruled that
2 C Gosnell ‘The request for an arrest warrant in Al Bashir’ (2008) 6 Journal of
International Criminal Justice 841-851 and A Ciampi ‘The proceedings against president
Al Bashir and the prospects of their suspension under article 16 ICC Statute’ (2008) 6
Journal of International Criminal Justice 885-897.