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A victory of principles

The filing of genocide charges against Sudan’s president, Omar al-Bashir, by Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court (ICC), is a principled act of symbolic significance for international law and peace with justice. Prior to Mr. Ocampo’s decision to press the indictment against Mr. Bashir, an array of world actors from the U.N. Secretary-General, Ban Ki Moon, to humanitarian and conflict resolution ‘experts’ had expressed serious reservations that the move could jeopardise Sudan’s fragile peace process and endanger the lives of four million internally-displaced persons.

That Mr. Ocampo disregarded the combined wisdom of the pragmatist naysayers and took the plunge by asking the ICC’s three-judge panel to issue an arrest warrant for Sudan’s military dictator speaks volumes of the progress that international law has made. Traditionally, international law played the role of subordinate to the political gamesmanship of international relations, wherein states operated on the basis of raw power and honoured only those customs and treaties that served their self-interest.

The very idea of forming an ICC was to privilege international law over the harsh jungle of international politics at least in one arena — that of war crimes and crimes against humanity. While the ICC falls short of universal jurisdiction, it has trigger mechanisms that can extend its global scope. Even if a state is a non-signatory to the ICC’s Rome Statute, there is a provision for the U.N. Security Council to refer a case occurring on that country’s soil to the Prosecutor on the grounds that it constitutes a grave threat to international peace. Sudan, despite being a non-member of the Court, could not avoid the Security Council route to indictment of its President.

In March 2005, the Security Council voted with 11 states in favour and four in abstention that the excesses being committed by Mr. Bashir’s janjaweed militias in the western region of Darfur did present a Chapter VII problem and was worth investigating by the ICC. China and the United States were among the abstaining countries. The American representative objected “to the view that the Court should be able to exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute.” This was a rehash of the George W. Bush administration’s justification for “unsigning” the Bill Clinton administration’s commitment to the ICC’s Statute, so that U.S. armed forces could not be hauled into the dock.

Yet, the fact that the vote went through in spite of the demurral of two of the world’s great powers and culminated in Mr. Ocampo’s indictment of Mr. Bashir shows how much the old domination of international relations over international law has diluted.

Arguably, U.N. Security Council resolutions are still in the domain of naked power politics. One might never be able to see the Defence Secretary or President of a country like the U.S. being served the kind of medicine that Mr. Ocampo has prepared for Mr. Bashir. For all the condemnations of resort to torture, rendition, and unlawful detention by American forces in the “war on terrorism,” it is next to impossible that the concept of chain of command would be invoked to corral George W. Bush into the ICC’s purview. Likewise, the disproportionate use of force by the Israeli army in the 2006 invasion of southern Lebanon could not produce any indictment from the ICC against Prime Minister Ehud Olmert. To this extent, international politics still tweaks international law to make it reflect the hard power configurations and inequities of the world order.

One could cynically conclude from this that Mr. Bashir’s failing lay in not being able to mobilise enough ‘No’ votes in the Security Council in 2005. Actually, had the majority of the Council’s members voted against Sudan’s referral to the ICC, it would have exposed the objectors before a new international moral climate of brooking no quarters for those who commit most atrocious violence. The paramilitaries unleashed by Mr. Bashir have claimed in excess of 300,000 civilian lives in Darfur and forcibly displaced some 2.4 million persons in a systematic campaign of intimidation and targeted assault.

The repugnance with which such mayhem was widely held was a strong deterrent against voting in favour of Mr. Bashir in the Council. States with whom Mr. Bashir had sewn strong economic, military and intelligence ties had to fall in line with soul power and vote to initiate the ICC’s prosecution mechanism. Even after the Council’s vote, the Sudanese government and its powerful international allies counted on Mr. Ocampo never crossing the Rubicon of prosecuting a head of state in harness. Up to this point, the ICC’s investigations had all been aimed at violent non-state actors in Northern Uganda, the Democratic Republic of Congo and the Central African Republic.

Mr. Ocampo’s foray into indicting a sitting head of state is not unique in the annals of international law, but a first for the ICC. The war crimes tribunals for former Yugoslavia and Sierra Leone had issued arrest warrants for Slobodan Milosevic and Charles Taylor respectively, when the two were incumbent heads of state in Serbia and Liberia. The ICC’s creation as a permanent standing court was to improve upon the precedent of country-specific war crimes tribunals and extend the scope of international justice to the whole world. What Mr. Ocampo’s brave indictment of Mr. Bashir has done is to demonstrate that the Court is not afraid of ruffling the feathers of abusive sovereign states anywhere in the world.

Mr. Ocampo’s historic indictment of the Sudanese President is a major shot in the arm for the notion of peace with justice. Practitioners of statecraft are criticising Mr. Ocampo as a grandstander who was so hungry for popularity that he spoilt the chances of peace negotiations involving Mr. Bashir’s government and rebels in Darfur. International humanitarian organisations and U.N. peacekeepers have followed suit by expressing anxieties about being attacked and rendered ineffective if Mr. Ocampo proceeded against the Sudanese President. Their version of ‘peace’ is of power sharing between a murderous state and rebels in which the victims of horrific violence have to acquiesce as passive recipients of aid handouts. Their vision of ‘normalcy’ in Darfur is to ask the sufferers of unspeakable tragedies to ‘move on’ and accept a hegemonic peace agreement that would not remove the basic source of insecurity.

Mr. Ocampo refused to see the logic in these models and rightly so. The argument that he should not indict Mr. Bashir owing to fear that Sudan’s government will become more vengeful and punitive misses the sad reality that Khartoum has proven intractable and intransigent for over four years since the Darfur carnage began in January 2004. How much worse can any situation get than genocide? Mr. Ocampo called the bluff of the Sudanese government and the humanitarians and upheld the supremacy of law over blackmail.

When Slobodan Milosevic and Charles Taylor were issued arrest warrants, they were the chief executives of Serbia and Liberia. As long as they could remain in control, the warrants could not be enforced. Once they fell at the hands of domestic political rivals, the arms of justice could no longer be parried and the two were transferred to the custody of international war crimes tribunals.

As of today, Omar al-Bashir is firmly in command in Sudan and will certainly mock and defy proceedings against him by the ICC. But he has been in power for 19 years now, and the law of averages regarding longevity of military dictatorships should catch up with him one day. Sudan will find peace with justice only when he trips from the saddle and is turned over for trial.

(Sreeram Chaulia is a researcher on international affairs at the Maxwell School of Citizenship in Syracuse, New York.)

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