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Wednesday, July 23, 2008

Omar al-Bashir versus the ICC

All the opposition groups in Darfur celebrated when the prosecutor of the International Criminal Court announced on July 14 that he was seeking the indictment of Sudan's President Omar al-Bashir on the charge of genocide, but almost everybody else had a problem with it. They don't doubt that al-Bashir is a ruthless dictator who is guilty of ordering many thousands of deaths. They just think that putting him on an international "wanted" list is unwise.

Tanzanian Foreign Minister Bernard Membe, speaking on behalf of the African Union, said: "We are asking for the ICC to re-examine its decision. . . . If you arrest Bashir, you will create a leadership vacuum in Sudan. The outcome could be equal to that of Iraq." Membe and many other people fear that the indictment of al-Bashir, far from ending the conflict in Darfur, could reignite the much bigger civil war between northern and southern Sudan.

Andrew Natsios, once U.S. special envoy for Sudan, was also worried that the ICC was playing with fire: "This indictment may well shut off the last remaining hope for a peaceful settlement (for Darfur)." United Nations Secretary General Ban Ki Moon phoned al-Bashir to assure him that the ICC is separate from the U.N. In Khartoum there was defiance from al-Bashir, and warnings from opposition leaders that this was not a good idea.

The Sudan People's Liberation Movement, which led the predominantly African and Christian south of the country in the 22-year civil war, was emphatically not for rocking the boat right now. The SPLM spokesman said that "indicting (Omar al-Bashir) has created a dangerous situation in Sudan threatening peace and stability in the country."

At stake, in SPLM's view, is the 2005 peace deal that gave the south its autonomy, and next year's promised elections in which the south could choose independence from the mainly Muslim and Arabic-speaking north if it wants. The election might also bring democracy to Sudan (or to the two halves, if they separate), after 19 years of al-Bashir's dictatorship.

An estimated 2 million people died in the north-south civil war, compared to perhaps 200,000 in the past five years in Darfur. Nobody wants to go back to that, and with oil revenues starting to grow, both the northern and the southern political elites have every incentive to make the deal work.

Sudan is in the midst of a difficult but still promising transition, but it may not succeed if al-Bashir's only choices are to live as a hunted criminal facing arrest and trial on genocide charges, or to cling to power forever. More immediately, his indictment could wreck the possibility of a peace deal to end the war in Darfur. So most of the northern opposition parties opposed the ICC's action, too.

But that is 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."

Moreno-Ocampo, and the three judges (Ghanaian, Lithuanian and Brazilian) who must now decide whether or not to indict al-Bashir, and the whole ICC, are quite rightly barred from taking political considerations into account. They are there to administer the laws.

The law in question is the new international law that seeks to make even senior military and political leaders legally responsible for genocide, crimes against humanity, and war crimes. Since such people are unlikely to face legal action in their own countries, which are generally tyrannies of one sort or another, it must be done at the international level. Hence the creation of the ICC in 2002.

The ICC is a fragile new growth that challenges the old de facto rule that sovereign states can forgive themselves and their servants for any abuse or atrocity, however wicked. One hundred forty-seven countries have signed the treaty that created it, although neither China nor India accepts the ICC's jurisdiction, and the United States and Israel have both "unsigned" the treaty.

The most powerful states are always the most reluctant to give up their sovereign powers in the interests of international law, so the rest of the world tends to go ahead without them, on the assumption that they will catch up later. In the meantime, the main problem for those who do support the ICC is to remember that they are trying to build the rule of law in the world, not to solve some local problem.

It is important that Sudan finally gets peace and prosperity, after endless years of war, tyranny and poverty. It is even more important that leaders who commit genocide, crimes against humanity and war crimes know that they will have to answer to an international court.

In the end, these two goals are probably not irreconcilable. Or do you really think that Sudan's political elites are so stupid and supine that they will let their whole future be wrecked in order to protect one brutal general who has long outlived his usefulness?

Gwynne Dyer's latest book, "After Iraq," was published recently in London by Yale University Press.

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