Thursday, March 5, 2009

Comment on the ICC Arrest Warrant (by Manisha Desai)

As this blog suggests, the ICC’s arrest warrant for the President of Sudan’s Omar Hassan al-Bashir begs the question: what is the purpose of the ICC? The ICC states that it “is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.” (http://www.icc-cpi.int/Menus/ICC/About+the+Court/). There are two prongs to “ending impunity.” The first is to create a deterrent effect and stop (or prevent) serious crimes. The second is to bring the perpetrators of serious crimes to justice and provide justice to the victims. As this blog notes, in the immediate term, the arrest warrant will have no effect in stopping the crimes being committed in Darfur by the al-Bashir government. To the contrary, as this blog and several news agencies have reported, not only have aid agencies been asked to leave almost immediately after the warrant was announced, but violence in Darfur is expected to increase. (Click here to read New York Times article: http://www.nytimes.com/2009/03/05/world/africa/05court.html?_r=1&hp). Similarly, while Sudan is required to cooperate with the ICC and arrest al-Bashir, it is widely accepted that Sudan will not do anything of the sort. Indeed, the ICC already issued warrants for a Sudanese government minister and a former militia leader in 2007. Neither has been turned over to the ICC. It is fairly evident that the ICC’s arrest warrant will have no deterrent effect in the short-term. But deterrence in the short term is a political question, one that any justice system, particularly the international justice system, is ill-equipped to handle. We must continue to hope that the international community will use all international political means possible to end the conflict.

If the ICC cannot provide short-term deterrence what was the purpose of issuing the arrest warrant? To fulfill the second prong of “ending impunity”: bringing al-Bashir to justice and providing justice to the victims in Darfur . While the arrest of al-Bashir is hard to envision today, there is a possibility that the government in Sudan will change or that in the future the international community will actively try to enforce the arrest warrant. Recent history suggests that perpetrators of serious crimes are being apprehended. One only need look at the arrest last year by Serbia of Radovan Karadzic, the former Bosnian Serb leader. Karadzic was at large for 13 years; living quietly in Belgrade . The catalyst for Serbia ’s action? Coveted membership in the European Union. (Click here for article on Karadzic’s arrest: http://www.iht.com/articles/2008/07/22/europe/serbia.php). Today China , Russia and some African countries are supporters of al-Bashir, but where will they be in 13 years? The ICC arrest warrant may not have any impact on the daily lives of the victims of Darfur, but it does give a glimmer of hope that when the fighting stops, the perpetrators are more likely than not to be brought to justice.

If justice is the principle goal, and it is well-known that justice will not be achieved immediately, why did the ICC risk increasing hostilities by issuing the arrest warrant now? Indeed, the Tanzanian president suggested during an interview on CNN that the ICC arrest warrant is a distraction from what should be the international community’s first priority of allowing UNAMID, the UN peacekeeping force in Darfur , to create peaceful conditions in Darfur . Justice, according to the Tanzanian President, can only come after peace has been achieved. Why, then, did the ICC risk further injuries and death when it knows that the arrest warrant will have no short-term impact? The Darfur investigation was referred to the ICC in March 2005 by the UN Security Council. (Click here for UNSC 1593 http://www.un.org/News/Press/docs/2005/sc8351.doc.htm). The al-Bashir arrest warrant was issued in March 2009 -- 4 years later. During these 4 years, according to Moreno-Ocampo, “[g]enocide continues. Rapes in and around the (refugee) camps continue. Humanitarian assistance is still hindered.” (http://www.nation.co.ke/News/africa/-/1066/498290/-/147jnmsz/-/index.html). Four years have not been sufficient for the al-Bashir government to stop the violence or for the international political community to secure peace through UNAMID. Waiting any longer to start the judicial process does not make sense in this situation. Further, as Human Rights Watch has stated: “Yielding to intimidation [by the al-Bashir government of further violence] would set a dangerous precedent and would make the international community susceptible to blackmail.” (http://www.hrw.org/en/news/2008/08/15/q-article-16).

By Manisha Desai,
Manisha Desai is an Adjunct Professor, Temple University, Japan Campus, where she teaches international business law. Prior to joining Temple University, Japan, Ms. Desai was an associate at Cleary, Gottlieb, Steen and Hamilton, where she practiced complex civil litigation and international arbitration and Waller Lansden Dortch and Davis, LLP, where she continued to practice complex civil litigation, with a focus on white collar crime. Ms. Desai also clerked for the Honorable John T. Nixon, Senior District Court Judge for the Middle District of Tennessee.

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