Wednesday, March 4, 2009

ICC Issues Arrest Warrant for Sudanese President al-Bachir

The International Criminal Court (ICC) issued an arrest warrant for the Sudanese president, Omar al-Bashir, on charges of war crimes and crimes against humanity in the Darfur region. The ICC stopped short of accusing al-Bashir of genocide, a crime which is much more difficult to prove as it requires the showing of a specific intent to commit genocidal acts. While the issuance of the arrest warrant signals progress in the field of international criminal law and will undoubtedly be applauded by most human rights NGOs, it nonetheless poses serious doubt about its political appropriateness.
Why shouldn't the ICC prosecute al-Bashir? Most people and most western countries and leaders agree that the Sudanese government, led by al-Bashir, has supported the janjaweed Arab militias, which have harassed and abused the African population in the south of Sudan for several years. Al-Bashir has certainly done nothing to stop the militias, and even his cooperation with humanitarian groups involved in rescuing refugees and setting up refugee camps has been lukewarm. However, prosecuting al-Bashir may not rectify the problem, and may even pose greater challenges.
First, al-Bashir, in reaction to the issuance of the ICC arrest warrant, has already declared that several humanitarian organization would no longer be permitted to work in Suday (click here to read the article: Thus, even the little help that Sudanese refugees have been getting will likely be suspended or indefinitely terminated. Second, the ICC has no real means of getting its hands on al-Bashir. The court has no enforcement mechanisms, and it relies on the good will of its member states to deliver suspects to the Hague. Yet, while the court has many members, not all states have agreed to its jurisdiction. Sudan has never accepted ICC jurisdiction, and al-Bashir will remain safe as long as he doesn't leave Sudan for an ICC member-country. Third, many African leaders fear that arresting al-Bashir may simply provoke more instability in Sudan, and that the instability will spill over to other neighboring countries. Some African nations have already threatened to pull out of the ICC in retaliation for the al-Bashir arrest warrant. Fourth, paradoxically, the United Nations continues and will continue to deal with al-Bashir. The United Nations has stated that as long as al-Bashir remains the official head of state in Sudan, it will maintain relations with him and will continue working with him on all U.N.-sponsored humanitarian efforts. Thus, the ICC, a U.N.-linked organ, wants to arrest al-Bashir and simultaneously, high-level U.N. officials continue their work with him! The situation is even more paradoxical in light of the fact that the U.N. Security Council, which actually has the power to request the ICC to investigate a suspect, had already asked the ICC to investigate violations in the Darfur region back in 2005. This time around, however, the U.N. Security Council is unlikely to act as China, a Sudanese trading ally and a veto-member of the Security Council, will oppose any resolutions supporting the ICC arrest warrant. U.N. peacekeepers in Sudan have no jurisdiction or mandate in Sudan to arrest al-Bashir, absent specific Security Council authorization. Thus, it looks like al-Bashir may be safe from actual arrest, as long as he chooses not to travel to any ICC-supporting states, likely to hand him over to the Hague. This is essentially what happened to Charles Taylor of Liberia and Slobodan Milosevic of Serbia - both were rogue leaders, confined to their own countries as travel anywhere else exposed them to international arrest warrants.
Is that enough as deterrence to future world leaders? If future al-Bashirs know that they will be confined to their own palaces, will they refrain from committing serious violations of human rights law? Or, are we just making the situation worse, by attempting to condemn leaders without the means to actually remove them, and by jeopardizing whatever fragile truce existed in these volatile regions? I fear that the latter may be true. It seems that the ICC, in order to be truly effective, needs better enforcement mechanisms or at least the cooperation and support by the U.N. Security Council. Otherwise, the ICC simply risks agonizing precarious regions and rogue leaders, leading to more violence and suffering where none is needed.

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