Bashir and the ICC: The Repercussions of Indictment

Last week, the International Criminal Court issued an arrest warrant for Omar Hassan al-Bashir (see left), the president of Sudan, indicting him on five counts of crimes against humanity and two counts of war crimes, saliently reviving age-old questions of sovereignty, international justice and the myriad of problems that lay within the attempt to reconcile the two. Since the Peace of Westphalia was signed in 1648, baptizing the nation state as a sovereign entity, quests for internationalism and cooperation have been thwarted by claims of this sacrosanct and supreme law. That being said, norms of international justice changed a great deal since the aftermath of the Second World War. The precedent-setting Nuremberg and Tokyo Trials internationalized questions of justice and made it clear that the international community is morally bound to try and adjudicate when national governments fail to deal out punishments to unforgivable crimes. In the wake of such unmatched devastation, states became increasingly concerned with human rights abuses and abusers, and also evermore willing to put offenders on trial. It had become clear that when dealing with crimes of immense magnitude or grievousness one is often dealing with government leaders themselves, illuminating an important legal dilemma between justice and sovereignty: immunity. Without overcoming this formidable barrier, nothing can truly be done. In one of its most revolutionary measures, the ICC states that no incumbent or retired head of state is immune to persecution. Bashir would be the first sitting head of state to be tried for war crimes. It is unlikely however that the Sudanese government will send him to the Hague and even less probable that the UN will go into Sudan to fetch him. In the wake of this news, the government expelled all humanitarian aid organizations providing relief in the troubled Darfur region and claimed that the ICC’s action was nothing more than thinly veiled colonialism. So my question is, is it worth it? Even if he is arrested, tried and convicted, will this at all quell the violence and unrest in the Sudan? I found two blogs that address the headline, one written by George Clooney, celebrity and prominent activist for action against the genocidal regime, and another by Martha Heinemann Bixby, director of Team Darfur and blogger for the Save Darfur coalition. My comments on each of these can be found below as well as at the respective sites.

Comment: "Nothing New to Report"

After the Holocaust, the world said, “never again”. But April of 1994 passed by dripping with the blood of hundreds of thousands of Rwandans, the UN retreated in fear, Clinton twiddled his thumbs, and it had happened again. The Genocide Convention demands action and intervention in the face of systematic killing and displacement, and so we are hesitant to label Darfur as such. The truth is, we do not care enough for the troubles of a distant land that an average American would be hard-pressed to find on a map. Instead we make promises: “never again” “not on our watch” and leave the dirty, worthy work to relief organizations who must be sworn to silence in order to provide what aid they can. While Bashir’s indictment is indeed a “window of hope”, is it one that will let in the winds of change? Or will it be another illusion of light that clouds over with the grime of negligence and forgetting? The immediate repercussions of the ICC’s actions have now resulted in the expulsion of organizations whose relief makes the difference between life and death for tens of thousands. Christophe Fournier, the president of Medecins Sans Frontiers fears that this will have a “devastating and immediate effect on the population”. News of their expulsion reached MSF at the same time as a meningitis outbreak was declared at the refugee camp in Kalma.

Meanwhile, the ICC lacks an army or police force and depends on States (both party and non party to the foundational Rome Statute) to participate and apprehend the defendant. Under Security Council Resolution 1593, Sudan has the obligation to cooperate with the ICC; whether the former will enforce this remains to be seen. The UN’s most recent decision to determine whether or not Sudan’s expulsion of aid groups in itself constitutes a war crime offers some hope that the organization is committed to act, though perhaps in a limited and ultimately insufficient manner to ensure that the government reverses its criminal decision. It is a tremendous shame that the fear and abuse experienced by so many has not been enough to rally the necessary support from those of us who look on to end this genocide without questioning. Humanity’s honor and dignity can decay no further when news media are more concerned with celebrity gossip than with reporting the many tragedies that unfold daily without an audience. The ICC has taken a small step whose progress depends entirely on the political will of states and the UN. Even if Bashir is tried, I fear that little will change for the people of Darfur, and that conflict could spread throughout the vast country if regional and international organizations are not prepared to step in and provide the necessary support for peace negotiations and stabilization. With China so present and steadfastly opposed to interventions that could mitigate its ludicrous profits in Sudan and the U.S. preoccupied with its impending economic collapse, it is a fine line upon which we must walk with care and conscious of the very real repercussions any miscalculation could have on an already devastated people.

Comment: “The arc of the moral universe is very long but it bends toward justice”

Darfur is the Rwanda of our time, and yet, despite the insurmountable shame of the world bearing witness without taking the necessary action, it seems we have learned very little from it. The UN Security Council has been faced with an existential crisis between its core missions and the political will of its member states. It seems to me that with China being such a crucial player, and so shamefully siding with Khartoum in claims of sovereignty and non-interference, the Security Council will be hard pressed to issue a statement demanding and supporting the necessary action. The ICC’s decision is indeed a “game changer” as you and Fowler suggest. But, is it enough? Many are looking to Obama to also throw the American muscle behind the Court’s decision; previous administrations, however, have worked diligently to challenge the creation of the ICC and thwart its jurisdiction. Though Obama’s policy shows signs of turning in a different direction: away from American Exceptionalism and towards international justice and cooperation. Many critics do not want the ICC to hold sway over American troops, who would then be subject to prosecution should they violate the Geneva Convention and other Human Rights statutes. Even if Obama looks away from impending economic doom to voice support for the Court and its indictment of Bashir and the UN Security Council do the same and offer the corresponding support, what effect will this have on the ground when there is no will to enforce and no capacity to send the necessary manpower? The Sudanese government has already issued threats of killing and maiming any and all who support the court and undermine the government. As Fowler suggests, these threats must be countered with international assurances that “such actions will be met with swift and severe consequences”. While this is undoubtedly a worthy call, I wonder how realistic these expectations are. Who is going to intervene?

The ICC’s indictment has caused the government to protest by expelling critical humanitarian aid agencies and organizations working in severely troubled regions. The IRC reports that in the Kalma Camp of southern Darfur alone, “this will leave 91,000 people without essential medical services” while “100,000 will be without clean drinking water”. So while it is imperative that justice be dealt to the chief orchestrator of mass rape, murder and displacement, what effect will this have on the very people Bashir has persecuted? Khartoum’s genocidal policies cannot be the work of this one man alone, so if he is removed, does the abuse end? If the ICC fails to apprehend him and the matter goes no further, where does that leave the people of Darfur? This crisis will not be resolved by Bashir’s apprehension, though it is no doubt a positive step, but rather, requires massive and radical support from the UN and regional organizations; which essentially amounts to a multilateral invasion that unseats those currently in office and oversees the stabilization of effective institutions and practices. This is unsavory to everyone who would need to be involved. With Bashir indicted, fears that the peace process will stall and the fragile truce between north and south will collapse once more into civil war – all of which are consequences the structures of agency and enforcement capacity in the international community is simply not prepared to deal with. So, is it worth it?