Yesterday, amid much feel-good righteousness from Western op-ed commentators, the prosecutor of the International Criminal Court, Luis Moreno-Ocampo, accused Sudanese President Omar al-Bashir of genocide, crimes against humanity and war crimes.
Dictators don't come much nastier than Bashir, and the accusations in the indictment are undoubtedly true. And yet the ICC's move is an incredibly bad idea. In fact it's reckless and may have lasting consequences for the authority of the court and other 'indepdendent' international institutions.
The ICC was created to seek justice for crimes against humanity, independently and without concern for politics. But being apolitical does not mean taking no account of the political impact of its actions. With this indictment, the ICC has politicized itself and -- in standing up for its independence -- may end up losing it.
There was an enlightening piece in Sunday's Observer (before the indictment was released) by Julie Flint and Alex de Waal on the likely ramifications of this move. Worth a read, but my interpretation is here:
Bashir's is the first ICC indictment against a sitting head of state. There are two ICC arrest warrants outstanding for members of his government. The day after the announcement, UN Secretary-General Ban Ki-Moon is quoted as asking Bashir to cooperate with the UN. Who is he kidding? From Bashir's perspective the international community is clearly out to get him. Whatever shred of cooperation he may have offered before will now evaporate.
What are the possible outcomes of an arrest warrant being issued for Bashir? He turns himself in? Not likely. He is arrested? Virtually impossible. He snubs his nose, retrenches and defies everyone? Certainly. So, what will be the ramifications of the ICC indictment? Pick your favourites from the list:
- The ICC loses credibility because its most high profile indictment of the year is defied and ignored.
- The ICC damages its neutrality because Muslim countries will (wrongly) interpret this indictment against a head of state as motivated by Western persecution.
- The UN forces in Darfur, already under attack by the Janjaweed (7 soldiers killed on Tuesday), are further isolated and become totally ineffective. All semblance of cooperation from the government ends.
- Relief workers may be threatened and UN humanitarian flights, which depend on Sudan government clearance, become disrupted.
- The fragile north-south peace agreement, which relies partly on the successful arbitration of The Hague's Permanent Court to define boundaries in the Abyei region, comes under pressure and risks breaking.
- Other regional leaders make a mental note not to cooperate with the court and other international institutions.
What worked well for the ICC in the cases of Charles Taylor and Slobodan Milosevic is that these guys were either being military expelled from power or were already ex-dictators on the run. No one cares if an ex-dictator is hauled before the court and locked up. But that possibility is in itself some deterrent for existing dictators, eg that there may be justice once you step down.
But indicting a sitting head of state will always be perceived as a political act by half the world. And it will never lead to an arrest, weakening the authority of the Court. But now the cat is out of the bag...
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