Friday, March 6, 2009

International justice and the ICC: the case of Darfur

The International Criminal Court's (ICC) arrest warrant for Sudanese President Omar al-Bashir has unleashed a firestorm of controversy around the world and actively threatens the legitimacy and effectiveness of the ICC moving forward.

According to the Rome Treaty, all 108 governments that have ratified it, creating the court, are obliged to help bring him to justice should he step foot in their territory. If only everything was so rosy. The case against the Sudanese president is fraught with political implications on numerous fronts.

For one, the tensions between countries who have refused to sign and/or ratify the ICC Treaty and the rest of the international community are particularly glaring. Major powers such as China, Russia and the U.S. have not ratified the treaty and as such do not recognize the legitimacy of the ICC. For the Chinese and the Russians, the strategy is simple: condemn the ICC's ruling - the first against an active head of state - as an infringement on state sovereignty (the bedrock of our present international order.)

For the U.S., the equation is more complicated. Washington has made claims in support of bringing President Bashir to justice. As we all know, Khartoum and Washington do not exchange best-wishes on holidays. However, as a non-signatory to the Rome Treaty, the U.S. is forced to tip-toe around the issue without supporting the ICC ruling too directly. This is problematic. When the world's premier power-player adopts such a wobbly position, it ultimately weakens the ICC's legitimacy in the eyes of many. People ask, "why should we recognize such a court when the world's most powerful nation does not?"

This is also opening a diplomatic fault line between the West and the Rest. Scouring the international media, blogs and official pronouncements reveals a steady supply of criticism at the current application of the ICC's legal proceedings. Many wonder how justice can be served when it is only pursued against the leaders of weaker states in Africa, Asia and Eastern Europe while the rich and powerful in Western capitals enjoy immunity.

In addition, the most dangerous potential repercussions of the ICC's warrant will be on Sudan itself. Many voices have criticized the move against Bashir due to the implications it will likely have on Sudan's fragile internal political and security situation. Already, upon hearing of the ICC's actions, a major rebel group announced they were pulling out of peace negotiations with Khartoum. Bashir's government for its part has reportedly expelled some 13 international aid organizations, affecting an estimated 4.7 million people living in Darfur. Stealing words from The Economist, "where justice has to be weighed against the urgent need to end violence, peace must sometimes come first."

Last but not least, there are serious reservations about the strength of the ICC Prosecutor's case against Bashir. While most observers don't dispute the heinousness of the crimes committed at the hands of the regime in Khartoum, some seriously question the feasibilty of a legal conviction at the present time. Alex de Waal a prominent human rights lawyer and Sudan expert concludes that:
"...if the Prosecutor were to prosecute President Bashir for genocide
using the arguments contained in the Public Application, then he would most probably fail to obtain a conviction. Bashir would be acquitted... [and that] if the Prosecutor were to prosecute President Bashir for warcrimes and crimes against humanity using the mode of liability, ‘perpetration by means,’ he would also face a high likelihood of failing to obtain a conviction."
The ICC's ruling makes a difficult situation all the more complex in my opinion. It will have political ripple-effects that threaten to, not only disrepute the court itself, but bring more hardships to suffering millions affected by the conflict. This is not in any way a defence or even justification of Khartoum's many crimes against its own people. I remain supportive of bringing any and all war criminals to justice, including Bashir. However, pragmatism must sometimes take precedence, especially when people's lives are at stake.

The matter in my opinion remains firmly political, and attempting to apply international justice in such a way, especially following the blatantly illegal war on Iraq, only strengthens the arguments of those that were already skeptical of the ICC's ability to apply its mandate in a fair and equitable way. The ICC prosecutor should remember that the Court is only as powerful as the strong countries of the world allow it to be. Unless the world's great powers suddenly decide to change the rules of international relations that have been practiced for ions, I see no reason why the ICC, in its current configuration will ever be able to play God-trick and operate as a truly objective institution free from the forces of international politics.

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