The International Criminal Court’s decision to pursue the indictment of President Omar Bashir – a serving head-of-state – for war crimes in Sudan’s brutal civil war has been widely criticised by diplomats and political analysts who fear that the threat of prosecution could derail the country’s fragile peace process.
Former US Special Humanitarian Coordinator for Sudan, Andrew Natsios, has warned that an indictment could provoke the Bashir government to “avoid any compromise or anything that would [further] weaken their already weakened position because if they are forced from office they face trials before the ICC.” Some have also criticised the chief ICC prosecutor Luis Moreno-Ocampo for laying his charges ineptly, and for gambling the court’s reputation and future prospects on a case that could easily become overwhelmed by legal and political complications, even to the point where it may have to be abandoned as impractical.
Sudan’s ongoing conflict, particularly in Darfur, is unquestionably a more pressing concern than the promise of high-profile justice down the road, and there is arguably no credible likelihood of justice without a negotiated peace. Furthermore, Moreno-Ocampo’s failure, so far, to secure the arrest of two other high-ranking Sudanese charged with war crimes does not bode well for his chances against President Bashir. Indeed, with both Russia and China likely to use their Security Council vetoes (for obvious economic, self-interested reasons) to delay proceedings for a year, a successful prosecution does seem like a long shot.
On the other hand, the fortuitous arrest in the same week of Radovan Karadzic, the man accused of the worst human rights abuses in Europe since the Nazis, does suggest that there is also a case to be made for a dogged commitment to international justice, even within the context of complex wars in which longstanding ethnic, religious and political quarrels considerably complicate the prosecutor’s task. The uneasy peace that exists among the splinters of the former Yugoslavia will undoubtedly be strengthened by a successful Karadzic trial (especially if the brutal General Mladic, who remains at large, were also brought to justice). But for many years it seemed as though the arrest and trial of Mr Karadzic would remain little more than wishful thinking. He seems to have lived quite openly in his years as a fugitive, protected by Serb nationalists who believed that his genocidal campaigns against Bosnia’s Muslims were in some way justifiable. It has taken the Serbs an inexplicably, one might say unconscionably long time to deliver this suspected war criminal to the Hague. If this is what happens in Europe, where international law should be able to impose itself most authoritatively, what are the odds that something better will happen in Sudan? Why bother?
Shortly after the ICC was created by the Rome statute, the British lawyer Geoffrey Robertson argued that the increasingly effective prosecution of crimes against humanity offered a way of “unlocking the closed door of sovereignty” and a way of ending the culture of impunity. At the time it was a bold and fairly optimistic claim, but the events of the last decade have borne out his prediction quite impressively. However flawed and incomplete, the landmark trials of Gen Pinochet, President Milosevic and Liberia’s Charles Taylor may have been, they have collectively changed the landscape for international justice in the new century out of all recognition. Just six months ago the Economist reported that “No fewer than ten former presidents and military dictators are facing legal proceedings for human-rights offences and/or corruption, some in international tribunals, others in their own domestic courts, a few in other countries’ courts.” As little as ten years ago this would have been barely imaginable.
The ICC’s dilemma, therefore, is that although it seeks justice independently of any political considerations (rebels commit atrocities too, and should be prosecuted) it cannot in the end escape from politics – however dispassionately its prosecutors approach their task. Sovereign immunity is a hard habit to break but it must be broken if international law is to amount to something more than good intentions. Unfortunately, even though the Bashir government has consistently frustrated the best efforts of the international community to bring peace to Darfur, even though there is for all practical purposes no peace process worth the name, diplomats prefer to deal with the known evils of abusive sovereign governments rather than take their chances in the brave new world of war crimes trials. By raising the stakes in his pursuit of Sudan’s genocidal leaders, Mr Moreno-Ocampo takes his place among a growing list of stubborn laywers who refuse to accommodate urgent political pressures of the moment. In doing so he runs the risk of permanently damaging the ICC’s viability and credibility, if he fails. If, however, the gamble pays off, the legal fate of the Bashir government could eventually become another warning to would-be dictators of the future that the days of sovereign immunity are finally coming to a close.
