The Criminally Negligent International Criminal Court (& Introducing Guest Editorial Series)

Introductory Note: The editorial essay below is the first in what I hope will be an occasional but regular series of guest editorials by friends of mine whose opinions I value, and which are based on a solid foundation of knowledge, both "academic"/scholastic and experiential. As is the norm with all editorial pages, here is the requisite disclaimer that, "the opinions expressed in the editorials are solely those of the author, and they do not necessarily represent the views of the blog administrator or other guest contributors to Views from the Occident." I encourage readers to engage with the guest editorialists, and with me, in the "Comments," as opposed to responding via the e-mail listserv. The purpose of these editorials is to expand the points of view published on Occident, and to encourage the exchange of views.

Now, with regard to the specific guest editorial essay below: Nat Powell writes about the recent indictment of Sudanese president Omar Hassan al-Bashir by the International Criminal Court. The indictment, he argues, will have little impact on the ground in war-ravaged Darfur, and very well may make matters worse there. Al-Bashir may retaliate by expelling NGOs and foreign aid organizations, and his regime could become even more politically and diplomatically intransigent toward the international community. The author, Nat Powell, is a Ph.D. student at the Graduate Institute of International and Development Studies (L’Institut de hautes études internationales et du développement) in Geneva, Switzerland, where he also recently completed an M.A. He completed a B.A. in political science and French at the University of Rochester, and has studied and traveled extensively in West Africa. We met in 2006 while studying Arabic in Amman, Jordan on Critical Language Scholarships, and have been friends ever since. Nat has a keen interest in politics, history, African studies, and social justice. He is fluent in French and possesses varying degrees of knowledge of several other languages, including Arabic and some West African languages.

The Criminally Negligent International Criminal Court

The ICC arrest warrant for Sudanese President Omar al-Bashir for war crimes and crimes against humanity has a small chance of success, and a much larger chance of catastrophic failure. The possible negative consequences of this decision involve a cost in blood which will stain the hands of those international lawyers and human rights advocates who have so gleefully worked for this outcome.

The chance of success rests on the theory that asserting international human rights norms by making heads of state accountable for their actions, will lead potential war-criminal dictators to moderate their actions. Even authoritarian regimes try to avoid international opprobrium and isolation if they can avoid it. Thus, an ICC arrest warrant backed with the imprimatur of the UN Security Council against your President should theoretically encourage you to find some way of removing him in order to lift the dark, Nazi-like clouds that hang over your regime. In other words, the warrant essentially represents an invitation for a coup d’état.

Sudanese president Omar Hassan al-Bashir

In the Sudanese case, there are indeed factions within the ruling National Congress Party (NCP) that would probably not mind changing their leadership. For example, many in the West, especially in the United States, see Ali Osman Taha, one of Sudan’s vice-presidents, as an ideal vehicle for this manoeuvre. He acted as the NCP’s chief negotiator in the talks that led to the Comprehensive Peace Agreement (CPA) with the South Sudanese in 2005 and many American policymakers see him as a pragmatist. Thus, as the theory goes, a nice, relatively bloodless coup d’état led by Taha would replace Bashir and deliver him to The Hague. In turn, Taha, who has more vested in the success of the CPA than Bashir did, would put an end to the NCP attempts to undermine the agreement. Furthermore, recognizing the futility of continued violence in Darfur, the new Taha government would enter into renewed negotiations with Darfur’s rebels, thus ending the genocide. This little scenario represents the best-case outcome of the ICC warrant. However, it also represents little more than a naïve illusion.

What if Bashir manages to stay in power? He certainly will not voluntarily go to The Hague to stand trial. What, then, is an ICC warrant worth if unenforceable? This would completely undermine the credibility of the ICC and reveal it as a toothless institution whose actions only serve to handicap everyone else’s diplomatic options. In this case, the ICC would suffer worldwide humiliation and the cause of human rights would suffer a major setback.

Since the arrest warrant will almost certainly always hang over Bashir, he has absolutely no incentive to bow to international pressure on any issue whatsoever. Indeed, he has already begun to expel international aid groups. Since the largest threat to his political survival comes from the international community, he now has every incentive to undermine as much of the international presence in Sudan that he possibly can. There is little need to highlight the gross humanitarian consequences that will ensue. Counterarguments highlight the “fact” that the situation can hardly get worse in Darfur. This point of view however completely ignores the humanitarian situation on the ground in that region, which bears little relation to the peak level of violence experienced from 2003-2007. Expelling the aid groups will quickly destroy this fragile situation.

'Ali Osman Taha, one of Sudan's vice presidents

However, even if Bashir’s cronies remove him from power, the hoped-for “reasonable” or “moderate” faction leaders that will replace him have just as much blood on their hands as Bashir himself. Bashir has little more responsibility for the events in Darfur than the rest of the regime he represents. Whatever Bashir’s individual crimes, the horrors in Darfur have deep structural roots that have very little to do with any individuals or group of individuals in power. A distant legal opinion cannot in any way, shape, or form, alter the structural inequalities and ideological formula that have systematically excluded Dafur from Sudanese political life for decades. The individual at the head of the government matters little in this larger schema. At best, indicting Bashir constitutes a symbolic reprimand, a slap on the wrists, for a thuggish regime. It allows the human rights community to feel good and pat themselves on their backs as if this ICC ruling actually helps anyone fighting daily for their own survival.

The ICC warrant does, however, severely impede anyone looking for diplomatic options. Now, the international community has no more leverage over Bashir. He has no more concessions to make to us. Indeed, the only card he can play now is that of violence since conciliatory actions on his part would probably fatally weaken him in the face of those whose conciliatoriness would not be marred by an arrest warrant. Now, short of an all out invasion of Sudan or similar acts of war---actions which could have far worse consequences than anything seen in Darfur to date— no one can “save Darfur.”

The ICC’s irresponsible actions have made the immediate short term situation worse by pushing Bashir into a much more hard-line position through pulling the rug out from underneath international humanitarian efforts. Thousands will die because of this. In the medium to long-term, the ICC arrest-warrant changes nothing and helps no one. The violence in Darfur will persist as long as the current political dynamic and regional imbalances remain. Bashir merely acts as a vehicle, among many vehicles, for the violence caused by these structural deficiencies. Removing him merely replaces him with equally bad characters who will perpetrate the same atrocities.

Copyright 2009 & All rights reserved by the author, Nat Powell. Article may not be reproduced or cited without the author's permission.