How the International Criminal Court could fail Darfur.
He is hurt, angry and hunted by the International Criminal Court. He is also the first sitting president of a country to be issued with ICC arrest warrants — in March this year. Amid resplendent chandeliers, I visited Sudan’s president, Omar al-Bashir, in his palace in Khartoum in April.
Eschewing his field-marshal’s uniform, and wearing traditional white flowing robes and a turban, the President said: “When Morgan Tsvangirai raised his hand to take the oath of office in the Zimbabwean government of national unity — with Robert Mugabe — all the international pressures and legal threats were forgotten. Maybe I should ask Tsvangirai to raise his hand here as well?”
Africa has many nasty despots, including Mugabe, so why is the ICC concentrating on Bashir? Does its selectivity conjure up suspicions of political targeting by the West? And what will be the results of ICC intervention?
Bashir is accused, inter alia, of war crimes in Darfur. Whereas the government in Khartoum says the Court’s ambitions are political, not legal: regime change in another oil-rich Islamic country. Many African leaders, even those who disdain Bashir, are outraged that all the indictments have been in Africa. Besides the Sudan, the ICC has intervened in Uganda, the Democratic Republic of Congo and the Central African Republic.
Khartoum argues that the ICC has no legal right to intervene in Sudan, which is not a signatory to the Rome Statute which established the Court in 2002. Moreover, say Bashir’s lawyers, he has sovereign immunity as head of state. Further, they say, the ICC — while claiming universal jurisdiction — is simply not international. Less than 27% of the world’s population comes under its jurisdiction, and this excludes, for example, the U.S., Russia, China, and India.
Many African leaders caricature the ICC as neo-colonialism, white man’s justice, especially French, German and British meddling, which ignores indigenous systems, such as South Africa’s Truth and Reconciliation process. They ask why the Court does not actively investigate alleged war crimes and crimes against humanity in Iraq, Afghanistan or Gaza. So far, however, the Court — which has no dedicated police mechanism — has not secured a single conviction of African defendants.
The Court has indicated that it may encourage signatory states to detain Bashir in international air space. Some senior lawyers have argued that this could violate international law, if Bashir were hi-jacked. Thus could air piracy compound Washington’s difficulties with piracy at sea.
Washington has long declared its opposition to the ICC, arguing that it would be used to exact “political” justice, and that states and individuals would be pursued for bogus political reasons under the façade of justice. Paradoxically, the American position on Sudan and the ICC has proved this to be absolutely the case. While attacking the ICC in the strongest terms, Washington nevertheless acquiesced in the Security Council referral of Darfur to the ICC (while demanding immunity for its own citizens). Washington has urged Sudan to submit to ICC demands. To many observers this is precisely the sort of political vendetta the U.S. had itself warned that the Court might be used for.
Peace Before Justice?
The ICC acted in order to improve conditions in Darfur. Instead they have been made worse. The timing of the arrest warrants could not have been more unpropitious. Just before March, peace talks in Doha were moving towards a possibly favourable outcome. The various rebels groups in Darfur are now encouraged to stall on talks. And Khartoum’s knee-jerk response of ejecting major humanitarian agencies, alleging that they spied on behalf of the ICC, will also exacerbate the suffering of the hundreds of thousands of refugees.
Bashir’s advisors make the point that the 2005 Comprehensive Peace Agreement which ended the longest war in Africa’s biggest country — the north-south conflict — did not include specific judicial claims to punish the numerous war crimes on both sides. The 2005 agreement, an unsung triumph of the Bush administration, could itself now be disrupted. That is why the former southern rebels, the Sudan People’s Liberation Movement, now a part of the National Unity government in Sudan, fret about a possible return to war because of ICC intervention.
The ICC wants peace, but threatens to undermine it throughout Sudan. In a glaring example of the law of unintended consequences, the ICC action has made Bashir a poster-boy for the Sudanese nation. He will probably easily win the presidential election early next year. With the exception of the rebels in Darfur, many Sudanese — both opponents and allies — are likely to rally around him. Another unintended consequence is that, like Mugabe, fear of the ICC will make Bashir president for life. He cannot risk retiring, even if he wanted to, 20 after coming to power in a coup. No one expected the ICC to entrench dictatorships.
Sudan is often projected as a tough authoritarian “Islamo-fascist” state. It is certainly authoritarian, but also potentially fragile. If the destabilisation of the peace process in the West (Darfur) and in the South leads to further explosions in the unsettled East, then a replay of the meltdown in Somalia could result. Sudan has borders with nine states, including Egypt, a strategic partner of the US. The implosion of Sudan would mean its removal as a key ally in Washington’s counter-terrorism campaign. Surely President Obama has enough failed or failing states to worry about?
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H/T to National Review Online