Jeune Street

Luis Moreno-Ocampo

Soon after posting about the International Criminal Court’s indictment of President Omar al-Bashir I received an email from a friend who works in the Office of the Prosecutor, Luis Moreno-Ocampo. The post had quoted several knowledgeable commentators, all of whom were critical of the ICC’s indictment for different reasons. My friend call them ‘the usual cynics’ and urged a more balanced look at the indictment.

After reading over responses from NGOs, governments, and international organizations, I think he’s right. There’s an interesting debate here.

“The usual cynics”

Intelligent criticisms of the ICC indictment can be summed up in five arguments:

1. The Court decision can be perceived as racist and lead to declining support from African governments. Evidence for this point is the African Union condemnation of the ICC decision. They have been joined by the Arab League and the Organization of Islamic States.

2. Indicting a head of state is a bad idea. There is a whole apparatus of government that is also responsible, and getting rid of the President doesn’t mean the next in command will be any better.

3. Initiating international criminal proceedings when a country is still in the middle of a peace process will be disruptive. It may destabilize the country and exacerbate a dire humanitarian situation.

4. The Court’s reasoning is legally unsound and it violated its own Statute. Sudan is not party to the Rome Statute, and so long as it insists on the immunity of its Presidents other countries can’t or won’t execute the ICC warrant for Bashir’s arrest.

5. There is no mechanism to effect Bashir’s arrest without other states cooperating. Sudan is unlikely to initiate its own criminal proceedings against him.  Without any way of independently executing the warrant for Bashir’s arrest, the Court has only made the Sudanese government more recalcitrant — just witness the recent ejection of 13 humanitarian NGOs.

A rebuttal

The underlying idea of these arguments is that the ICC may end up pursuing justice at the expense of peace and human rights in Sudan. This is an old debate that has surrounded ICC actions in the past. In might be surpising, then, that human rights organizations have largely come out in favour of the ICC indictment. Their response to the cynics’ arguments are as follows:

1. The racist argument: Two of the six newly elected ICC judges are from Kenya and Botswana. Others on the 18-judge bench include judges from Ghana, Uganda and Mali. The Ghanaian judge is vice-president of the court and president of the Pre-Trial Chamber which issued the Bashir decision.

2. The head of state argument: Indicting a head of state may have deterrent effects for other rulers acting with impunity. Richard Dicker at Human Rights Watch said: “Not even Presidents are guaranteed a free pass for horrific crimes. By ruling there is a case for President al-Bashir to answer for the horrors of Darfur, the warrant breaks through Khartoum’s repeated denials of his responsibility.”

3. The disrupting peace argument: Efforts to use diplomatic censure and sanctions against the Sudanese government over the past several years have been ineffective, and the immediate need is to start to identify who is responsible for the atrocities that have plague the country. Six female Nobel Peace laureates noted also that the development of the ICC is important for long-term peace prospects: “We are convinced that justice will be a pillar of peace in the Sudan, as it will be globally. The creation of the International Criminal Court is a critical and significant development in international law that took more than five decades to establish. With its global reach, it has the potential to prevent, or drastically reduce, the deaths and devastation caused by violent conflict and abuses of power.”

4. The law argument: The International Bar Association supported the legal basis for decision, recongizing the enforcing it will be a challenge for the Court. Still, they argued that it marked an important step in ending impunity in Darfur.

5. The enforcement argument: The ICC relies upon states to enforce its decisions and execute arrests. This highlights the crucial link between unity and justice — what Rastan has called the ‘responsibility to enforce’ — in the new international legal architecture.

Parallels with America?

Parallels can be drawn with the federal system in the United States.

First, in the Federalist Papers (#78) Alexander Hamilton famously argued that the judiciary is the “least dangerous” branch of government because it has “neither force nor will, but merely judgment”. It “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Similar to the American Supreme Court, the ICC can’t operate effectively without the support of states. Most of the criticism of the ICC’s indictment of Bashir extend from skepticism that states will actually execute the warrant.

Second, the American Supreme Court gave itself its most important power in order to keep the executive in check. In 1803 the Court gave itself the power of judicial review — to declare legislation unconstitutional and nullify it. This decision has been crucial to the American system of checks and balances. In international relations, states and their rulers act with impunity. We may look back on the Bashir indictment just as Marbury v Madison is lauded today as a legal innovation that enhances accountability in America.

The end of unconditional sovereignty

The Bashir indictment isn’t likely to produce a quick and uncomplicated resolution. But that’s kind of the point. We’re still trying to figure out how international criminal law works in a world of nation states. One thing is for certain: unconditional state sovereignty is on the wane. And so is impunity.

Photo Credit: Invisible College