Wednesday, Aug 27th, 2014

The ICC warrant on Omar Al Bashir isn’t perfect – but it’s better than the alternative

It is true that aid agencies have been kicked out of Sudan because of the ICC’s recent warrant on Al Bashir. But hoping that the President of Sudan will act less awfully is left alone is no compromise

By on Thursday, March 19th, 2009 - 1,437 words.

INTERNATIONAL-US-SUDAN-DARFUR-ICC

On 4 March 2009 the International Criminal Court issued a warrant for the arrest of Omar Al Bashir, the serving President of Sudan. It is the first ICC warrant to be directed at a serving Head of State. The warrant alleges war crimes and crimes against humanity arising out of:

“intentionally directing attacks against an important part of the civilian population of Darfur, Sudan, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and pillaging their property”.

The Court declined to issue a warrant alleging genocide, also sought by the prosecutor, although it expressly left open the possibility if additional evidence was produced.

The response of the international community to the issue of the warrant has been varied. It has been hailed by some groups as an important step in ending the impunity of tyrants. Others fear the issue of the warrant will derail the already fragile road to peace in Darfur. Others still condemn the warrant, dismissing it as the result of a institution biased against Africans. Mr Bashir himself told the Court to “eat” the warrant.

Sadly, the predictions of the second group appear to have some traction. Following the issue of the warrant the Sudanese government expelled a dozen major international aid agencies and several smaller ones in what appears to be direct retaliation. Vital services will no longer be provided. Once again, it seems, the people of Sudan are being forced to pay a terrible price for their leaders politics.

Calls have been made for the warrant to be suspended or abandoned. They may intensify if the situation deteriorates In this article I argue that despite this terrible turn of events, the international community should stand firm on maintaining and enforcing the arrest warrant.

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The trade off between justice and political accommodation is not a new issue. It has been a re-occuring theme throughout the development of international criminal tribunals in the last 15 years. Inevitably, the closer in time the proposed prosecution to the charged acts, the greater the controversy.

At the heart of the conflict is the concept of the inherent and equal value of all individuals. Every person is to be regarded as an end in themself, never a means to some other objective. This concept, among others, guided the development of international criminal and human rights law that in turn gave birth to the ICC. A tension emerges where, in instances such as Sudan, the enforcement of international criminal law causes individual suffering and loss of life.

This tension is unavoidable. But simply identifying the existence of it is not an argument in favour of abandoning the enforcement of the law. An assessment must be made of the particular circumstances. In this respect, of Sudan, I make four points.

First, it should be clear that all else being equal, the presumption must fall in favour of criminal justice. The perpetrators of the worst crimes should be punished. The character of such acts demands a response on behalf of an outraged humanity. It is hoped that the threat of prosecution creates a credible deterrent against future atrocities. The prosecution of wrong doers and the acquittal of those found not guilty provides an important historical record: the Nuremburg judgments make life much harder for holocaust deniers. Court processes, though cumbersome, provide the best and fairest way of achieving these outcomes.

Second, it is worth noting that it is not the role of the ICC to stop atrocities. It may do so indirectly by incarcerating the wrong-doers or deterring future evils. Primary responsibility for enforcing peace and security falls elsewhere. The international community has a history – particularly in Yugoslavia and Sudan – of using international criminal tribunals as a way of showing they are doing something. The use of the tribunals is to be applauded, but it is no substitute for diplomatic or military action if that is what is required. This is not to say that the impact of the ICC on peace should be ignored. Rather, it is a caution to avoid hamstringing the ICC simply because other mechanisms are dysfunctional.

Third, it is relevant that in Sudan there is little evidence that there wass a peace process in place that is being disrupted by the warrant. Darfur rebels were apparently expanding their operations before the warrant was issued. The argument in favour of suspending or abandoning the warrant seems to be based on a hope that if Mr Bashir is responsible for atrocities, he will be less awful if he is left alone. This reasoning is deeply unattractive. There is a world of difference between, on one hand, a choice between peace and justice and on the other, a choice between acquiescing in a small mass murder and protesting a large one.

Fourth, there is hope – and a little evidence – that the issuing of the warrant may result in a change in the leadership in Sudan. Apparently a Sudanese minister has commented that as a result of the warrant “[Bashir’s] position has become [affected] and he doesn’t enjoy respect – [he] is now labelled with war crimes and crimes against humanity.” This seems good news. It suggests that such labels carry weight, giving rise to the possibility of new leader whose behaviour might be tempered by the threat of international criminal prosecution.

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A response must be given to those who label the ICC as biased. Their arguments do not appear to be targeted at the court processes. Rather, they assert a politicization of the way that the ICC is granted jurisdiction.

The argument, in essence, is that the ICC is a tool of the West. This is said to be evidenced by the fact that the ICC’s four present investigations are all against African countries. This misses the point. Of those four countries three, Uganda, Sierra Leone and the Central African Republic all referred themselves to the Court. The ICC may not have a non-African country before it today, but the ad-hoc criminal tribunals that directly proceeded it operated in Europe and Asia.

The alternate argument is that bias is evidenced by the failure of the court to be granted jurisdiction over non-African countries involved in wars, such as Russia, China, Israel or the US.

This is too simplistic. The fact that a veto wielding member of the Security Council hasn’t had a referral made to it or it’s allies by that Security is no surprise. It may well be an argument for Security Council reform. It doesn’t mean the single referral by the Security Council to date (to Sudan) is the result of bias.

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The preceding paragraphs only take the case so far. A brief rights analysis, some cautious optimism about change and a quick rebuttal of radical critics of the ICC doesn’t do anything for the individuals whose lives have been put at risk by the arrest warrant. Weighing immediate human suffering against other outcomes is an immensely difficult task.

To be clear – the plight of those individuals is the fault of their government. At very least, the government has shown itself unable to discharge its duty to protect its citizens and unwilling to allow others to help. Yet the fact remains that “but for” the issue of the warrant the aid agencies may not have been thrown out. Their services would still be available. The possibility exists that individuals will lose their lives because of a warrant that may never be enforced, for the sake of a system of justice they will never benefit from. For that reason, the argument in favour of maintaining the warrant is not immediately convincing.

Nonetheless, it is the right one, if only because the alternative is worse. To abandon the warrant now – on the vague hope of something closer to peace – would give every tyrant and criminal a clear precedent to follow. Suddenly, expanding the scale of atrocities would become an effective countermeasure to the imposition of criminal justice. However bad the alternative, this cannot be better.

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Julian Ensbey

Julian graduated from the University of Queensland with degrees in law and business. He has an enduring interest in human rights, ethics, law, politics and economics.

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