Tuesday, March 10, 2009

The Birds, the Bees & the ICC

Last week, the International Criminal Court (ICC) issued an arrest warrant for Omar al-Bashir, President of Africa's largest country and home to the infamous Darfur conflict, Sudan. This post is an attempt to consolidate what is no doubt an array of confusing information and names for those unfamiliar with the infant institution. My hope is to offer insight into this watershed event in international human rights.

A (Very) Brief History of the ICC
With the intent to try perpetrators of international humanitarian law, tribunals were created on an ad hoc basis following WWII (the Nuremberg Trials), the atrocities of the Former Republic of Yugoslavia (the International Criminal Tribunal for the Former Yugoslavia), and the Rwandan genocide (the International Criminal Tribunal for Rwanda. The results were mixed: while the ad hocs represented successes for the international human rights regime, as well as the victims of some of the most tragic events of recent history, they were also marred by bureaucracy, incompetence and corruption, and were accused of being a form of victor's justice. Some important figures were successfully prosecuted; others, most notably Serbian President Slobodan Milosevic, "got away" (Milosevic died of a heart attack after almost five years of criminal proceedings -- no verdict was delivered).

The ICC is a permanent court based in The Hague with the mandate to prosecute individuals for the "world's worst crimes," including genocide, crimes against humanity, and war crimes. Its creation in the late 90s was an attempt to solve the ad hocs' shortcomings -- to reduce costs and inefficiencies, as well as deter future violations. Most critically, the ICC can prosecute anyone from Joe the Plumber to Barack Obama, which is huge: if this thing works, heads of state will be unable to allow atrocities to happen on their watch, a massive leap -- not a step -- forward for international human rights.

The ICC's founding treaty was ratified by the required 60 states in 2002, and today, more than 100 member-states compose its Assembly of States Parties (ASP). And yet, some of the world's most influential states -- Russia, China, India, and oh yeah, the United States -- have thus far refused to join. But that was Bush, and this is "stem cells are alright" Barry.

In all seriousness, it does seem probable that Obama will eventually sign the US up for the ICC, because frankly, Bush's primary insecurities were largely unfounded. I'd be happy to flesh this out elsewhere, but it's not what this post is really about. So...

What Happened with Bashir?
Who doesn't love bullet points?:
  • Early 2003: Violence begins in Darfur, a conflict that continues today. Roughly 300,000 people have died, more than 3 million people have been displaced, and 4.7  million people now rely on humanitarian aid for food, water, and shelter. It is the world's largest humanitarian crisis.
  • March 2005: In a sly move at the UN, France essentially corners the Bush administration, and the case of Darfur is referred to the ICC.
  • April 27, 2007: The ICC issues arrest warrants for Ahmed Haroun, Sudan's Minister of State for Humanitarian Affairs, and Janjaweed militia leader Ali Kushayb.  Both remain at large and are therefore classified as "international fugitives."
  • July 14, 2008: ICC Prosecutor Luis Moreno-Ocampo presents a case against Sudanese President Omar al-Bashir for war crimes, crimes against humanity, and genocide in Darfur.
  • March 4, 2009: The ICC issues an arrest warrant for Bashir on five counts of crimes against humanity and two counts of war crimes, but not genocide as Moreno-Ocampo suggested. It is the first arrest warrant for an active head of state issued by the ICC.
  • In the last week: Bashir is totally not cool with the arrest warrant. The guy's literally dancing in the streets of Darfur and laughing at the ICC's absurd allegations.

Does the ICC have a case against Bashir?

On the one hand, he has presided over wartorn Sudan since 1993. There is a myriad of evidence that his government aided Janjaweed militia in the systematic destruction, rape, and murder of the peoples of Darfur. Most notably, it is well documented that combat training and planes were provided. And back in 2004 when the governments of the world actually seemed to care about Darfur (Bush and Co. even called it a "genocide"), Bashir's government consistently prevented humanitarian agencies from entering Darfur, claiming that they had it all under control.

On the other hand, Sudan does not provide first year Poli Sci students with a particularly strong example of separation of powers. Sure, Bashir's the President, but the ICC is "arguably chasing the wrong person." Moreno-Ocampo has made him out to be an all powerful dictator, but experts have confirmed the government has numerous centers of power. It is quite possible that others in the chain of command had greater knowledge and authority over the situation in Darfur.

The Unknown
Best Case Scenario
Optimists hope that moderates within Sudan's government will turn Bashir over to the ICC, negotiate a solution to Sudan's multiple conflicts, and that human rights will eventually be prevail.

The Financial Times' William Wallace rightly concludes this would be "somewhat of a miracle."

Worst Case Scenario
Pessimists say hardliners will rally around Bashir, non-political humanitarian aid agencies will be forced out of Darfur, and old conflicts (i.e. a North-South civil war that precluded the violence in Darfur) will reignite.

While arguably overstated, this scenario seems far more likely. In fact, the licenses of 13 humanitarian agencies have already been revoked, and four peacekeepers were "ambushed" and injured earlier today. Simply put, it's not only possible, but probable, that the ICC's warrant could undo the positive work that has been done in the region since the beginning of the crisis.

The Challenge
I would argue that, regardless of the current situation, the ICC has four primary impediments: distance, enforcement, investigation, and politicization. All four prove problematic in the current Bashir case and must be considered if the Court is to be successful.

First, the Court is situated in The Hague, far from the impoverished villages of Darfur. This has two main implications: (1) Bashir and others have deemed the ICC another of the imperialist world's attempts to meddle in African affairs -- in short, it is portrayed as a "White Man's Court"; (2) The separation of the Court from the far reaching locales it has jurisdiction over does little to educate and thus deter would-be criminals from committing crimes against humanity. Nonetheless, I personally believe the Court's permanence is vital to its success and that its seat in The Hague will encourage impartiality (the ad hocs arguably suffered from a biased, regional perspective).

Second, the Court has zero means of enforcement -- no police force, no soldiers, notta. The primary responsibility of enforcement therefore lies with its member-states to deliver those who have been issued arrest warrants to The Hague post haste. Again, two problems: (1) What state is actually going to deliver its current President? (Sudan ain't even party to the ICC); and (2) Other states party can only arrest Bashir should he leave Sudan, something he's not bloody likely to do.

Third, the Court relies on state cooperation in regards to investigation. For Moreno-Ocampo to succeed in bringing Bashir to justice, he will almost certainly require official documents and transcripts of meetings and/or phone calls that prove Bashir intentionally committed these crimes. Moreover, he has to prove these crimes even occurred, something that may prove difficult without unfettered access.

Finally, just like the ad hocs, the ICC is at risk of becoming entangled politically. Personally, I would argue that there was ample foresight in this area to prevent anything fishy from occurring. Even so, we must resist the temptation to assume Bashir is guilty simply because Moreno-Ocampo has brought a case against him. Like they say, "innocent until proven guilty." Ardent supporters of the ICC should see the warrant as a success, regardless of the outcome.

So What?
Even if the arrest of Bashir is somehow orchestrated, Moreno-Ocampo's got a tall order. He'll have to prove the crimes occurred, that Bashir organized them, and that he had the proper intent. Something of this magnitude will take extraordinary patience and conviction on the part of the ASP (read: time & $). Forgive me for being less than optimistic.

More importantly, we must ask ourselves whether this is really worth the risk. It is true that the outlook seems bleak. But it's been nearly seven years since this conflict began, and despite its highly publicized nature, repeated outcries of civil society, and the promise to prevent another Rwanda, children are still dying in Darfur. Can we afford not to try a new approach?

If I sound conflicted, it's because this is some seriously heady stuff with no clear cut answer. Regardless of the outcome, as a student and proponent of human rights, I recognize the tremendous strides that this week's events represent. Their importance cannot be understated.

I remain ever hopeful that sovereignty will be strengthened, not weakened, by a robust system of international law, that crimes against humanity will one day be prevented, not prosecuted, and that the ICC will be successful in its ambitious goals.

1 comment:

Dave said...


This is the most cogent piece I have read on the Bashir case. Your four points (challenges) are quite compelling, especially point number two.

While it is a "new" approach in the case of Sudan, the ICC is the not the best way to go about advancing human rights in the region. As you state, the ICC is a western institution, in a western european country, promoting a western idea of human rights. Do we really expect local actors, who had no voice in the process of developing the international human rights infrastructure, to comply with this universal (read western) rights initiative?

It seems like a better approach would be to help local/ regional bodies articulate and enforce human rights, as understood through their own particular communal and political historical narratives. Anything short of this will be seen as a yet another western "savior" approach and will fail to gain long-term, sustainable traction.

At the end of the day