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Was the ICC Right to Indict President Bashir of Sudan?

March 27, 2009

by Charlie Sprague
Was the ICC Right to Indict President Bashir of Sudan?

Right now the most heated debate in international justice centers on the decision of the International Criminal Court (ICC) to issue an arrest warrant for President Omar al-Bashir, the leader of the Sudanese government. Human rights activists applauded the move on March 4th as long overdue, but the announcement has also generated serious outspoken criticism. To begin, there have been many unfair criticisms of the ICC’s decision. The president of the U.N. General Assembly, Miguel d’Escoto Brockmann of Nicaragua, recently said of Bashir’s indictment, “It helps to deepen the perception that international justice is racist because this is the third time that you have something from the ICC and for the third time it has to do with Africa.” Notice he is not directly accusing the ICC of being racist, but his comment was nonetheless highly irresponsible. Most of the victims of Bashir’s war crimes are Africans and refusing to prosecute Bashir out of a fear of being labeled racist would be a moral outrage. Indeed, responsible and compassionate African leaders such as Desmond Tutu have urged African leaders not to come to the defense of Bashir. Furthermore, Brockmann’s statement lends credibility to the self-serving accusations of authoritarian leaders who claim that the ICC is a tool of Western imperialism.

Yet there have also been more substantive challenges to the ICC’s indictment. Andrew Natsios, former U.S. special envoy for Sudan has expressed concern that issuing the arrest warrant will disrupt peace efforts, “This indictment may well shut off the last remaining hope for a peaceful settlement (for Darfur).” Before the announcement, the African Union and the Arab League had asked the Security Council to delay the warrant for a year to pursue peace efforts in Darfur. Additionally, Bashir has retaliated against the ICC’s move by announcing that he is forcing dozens of foreign aid groups out of the country. This will be a tragedy for the millions of Sudanese in Darfur and elsewhere who depend on the generosity of foreign aid organizations. inally, many scholars have protested the ICC indictment by arguing that the decision is completely unenforceable, especially given the opposition of both Russia and China.

Although framing the issue as a debate between peace versus justice seems to make the opponent’s position quite convincing, I am still not convinced that the ruling was a fool’s errand. An editorial in The Japan Times makes what I find to be the most convincing argument in favor of the court’s decision: the ICC is a court, not a political organization, and its job is to uphold laws of international justice. As the article states, “[Objections of political expediency are] irrelevant to the International Criminal Court, because it is not a political organization. It is a court, and courts operate by different rules. It may be politically inconvenient to indict al-Bashir right now, but as the prosecutor, Luis Moreno-Ocampo of Argentina, said recently, ‘I don't have the luxury to look away. I have the evidence.’” The editorial also makes the valid point that the other leaders of the Sudanese government may very well be persuaded to turn over Bashir if doing so would lessen international pressure and allow them to keep power. At the very least, the ICC’s announcement should help corrode whatever shred of legitimacy Bashir had maintained to this point. Finally, even if the ICC is never able to enforce its’ arrest warrant, I still believe there may be some value to the symbolic expression that no leader is unaccountable to international justice. I am by no means completely sure of my position and I am quite interested in what other people have to say about this issue.

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