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

Politics of international criminal justice 153
3.1.3 ICC arrest warrant for Al Bashir is ill-timed and a ‘provocative act’ in
conflict resolution theory and practice
From a conflict resolution perspective and going by the various ongoing
political processes in Sudan, the issuing of an arrest warrant by the ICC for
Al Bashir can rightfully be construed as a provocative act and a potential
conflict trigger, thereby explaining the AU’s sentiments. The warrant is illtimed
and seeks to tamper with an essential element of the Sudan’s peace
processes - the continued existence of both parties. As outlined above,
according to Wallensteen’s theory of conflict resolution, operationalised
by the examples discussed above, one of the central elements to a
resolution exercise is the continued existence of the opposing parties and
not a situation of defeat and win or capitulation. The fighting parties must
accept each other also as parties in future dealings with one another. In this
case, Al Bashir, President and part of a dominant elite representing the
Northern government, is a key element to the success of the North-South
accord and the recently-promulgated North-Darfur Accord. In so far as the
actions of the ICC have the potential of terminating or fatally jeopardising
the existence of one of the parties to these conflicts – Al Bashir – they ought
to be construed as provocative and carried out in disregard to the objective
of sustainable peace in Sudan. As alluded to earlier, not only is Al Bashir
part of the problem in these conflicts but he is also an integral part of the
solution. Therefore, any application of international criminal justice/law
devoid of a careful consideration of his position and role in the conflict and
the peace process attendant thereto, can only be self-defeating. On the
issue of timing, having emphasised the critical role of Al Bashir in the
peace processes and with a looming Southern Sudan referendum on their
future as part of Sudan, the arrest warrant could not have come at a more
inappropriate occasion.
This point seems of little relevance to the OTP, following the position
of the ICC Prosecutor on the need to take into consideration the interests
of justice when discharging his duties. His interpretation excludes matters
of peace and security. In September 2007, the OTP published a Policy
Paper on the Interests of Justice. 24 In this document, the ICC prosecutor
states, amongst other things, that the criteria for the exercise of article 53
of the Rome Statute ‘will naturally be guided by the objects and purposes
of the Statute, namely the prevention of serious crimes of concern to the
international community through ending impunity’. He also notes that
‘there is a difference between the concepts of the interests of justice and the
interests of peace and that the latter falls within the mandate of institutions
such as the UN Security Council other than the Office of the Prosecutor’. 25
24 ‘Policy paper on the ‘interests of justice’ Office of the Prosecutor ICC September 2004
www.icc-cpi.int/NR/rdonlyres/.../ICCOTPInterestsOfJustice.pdf (accessed 1 June
2010).
25 As above, 1.