Jeune Street

President Omar al-Bashir

On March 3rd, the International Criminal Court issued a very controversial indictment against Sudanese President Omar al-Bashir. His response to the ICC, by the way, was that they should 'eat it' or 'dissolve it in water and drink it' (depending on the translation).

I think most people with a superficial knowledge of the situation in Sudan (of which I am one) would have seen this as a step forward for international justice. Bashir has blood on his hands, and it would sure be nice to see him account for his crimes. I'm neither an expert on international criminal law nor on Sudan, but the commentators I trust and friends in the know seem to think that issuing the indictment was politically short-sighted and legally wrong. Here's a round-up of what these people are saying.

Alex de Waal (at African Arguments):

The ICC arrest warrant against President Omar al Bashir heralds a new era for global governance and human rights. But it is not at all clear what will be the character of this new era. Is Luis Moreno Ocampo [Prosecutor for the ICC] the vanguard of the human rights international, bringing a new dawn of justice and accountability, in which tyrants quiver at the prospect of the fearless prosecutor, speaking for the voiceless victims, armed only with the precious norms of universal human rights? Or is the Prosecutor a stormtrooper for judicial neo-colonalism, kicking down the doors of others' hard-won independent sovereignties, brushing aside the protests of peace mediators, to demand the unconditional surrender and handcuffing of those without the protection of a superpower?

Let me argue that the Bashir arrest warrant is something else-a moment of crisis in the project of building a global human rights order. The immediate cause of this is Moreno Ocampo's overreach. Possibly his status as a celebrity prosecutor, feted by the Hollywood stars who have converged on the Darfur crisis, led him astray.

Amanda Taub (at Wronging Rights):

When something like an ICC warrant comes floating down into Sudan, it's not blind, impartial justice. It is an act of power, directed at one party to an ongoing conflict. If it takes full effect, and Bashir gets sent to the Hague, then it is a coup removing a leader from power.

... there is an extremely strong likelihood that the ICC warrant could do all of the following: destabilize a fragile set of not-yet-peace-talks, undermine the almost-but-not-really-implemented peace agreement, support the presidential ambitions of Bashir's genocidal henchpersons, and leave millions of civilians vulnerable to starvation, disease, and violence. (But that's okay, because they all agree that it's totes worth dying of cholera for the possibility of Bashir's arrest, right?)

All that to put one dude on trial in Europe? Really? This is worth it?

Mogogo Albanese and Sarah Nouwen (at Making Sense of Darfur):

Perhaps the ICC judges in their wisdom have found new law Perhaps. But the least one might expect of professional judges of a purportedly exemplary court after eight months of deliberation is that they justify their development of a body of law that reflects the fundamental tension between state sovereignty and international justice. By totally glossing over one of the most fundamental issues in international law, they have placed States - and themselves - in an impossible position.

... If the message of the judges' decision is that no one is above the law, not even a President, they should not place themselves above their own Statute. When judges base decisions on an assumed moral high ground rather than law and reasoning, what hope for others to respect the rule of law?

Antonio Cassese (first President of the International Criminal Tribunal for the Former Yugoslavia):

The decision of Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court, to request an arrest warrant against al-Bashir is puzzling, for three reasons.

First, if Moreno-Ocampo intended to pursue the goal of having al-Bashir arrested, he might have issued a sealed request and asked the ICC's judges to issue a sealed arrest warrant, to be made public only once al-Bashir traveled abroad...Having instead made the request for a warrant public, al-Bashir - assuming the judges uphold the request - can simply refrain from traveling abroad and thus avoid arrest....

Second, Moreno-Ocampo has inexplicably decided to indict only Sudan's president and not also the other members of the political and military leadership that together with him have planned, ordered, and organized the massive crimes in Darfur...

Finally, one fails to understand why Moreno-Ocampo has aimed so high and accused al-Bashir of the "crime of crimes," genocide, instead of filing charges that are more appropriate and easier to prosecute, such as war crimes (bombing of civilians) and crimes against humanity (extermination, forcible transfer of people, massive murders, rape, etc.).