LONDON – Earlier this month, the International Criminal Court (ICC) upheld the request of the court’s chief prosecutor to issue an arrest warrant for Omar el-Bashir, the President of Sudan, charging him with war crimes and crimes against humanity.
Bashir responded by expelling foreign aid agencies looking after the refugee camps in Darfur. This is the first time that a sitting head of state has been indicted for war crimes, with reaction around the world mainly divided between those who hailed the move as a great step for international justice and those who condemned it as colonialism. Both positions are hopelessly buried in intellectual and moral fog.
The warrant was no leap forward. From the legal point of view, it makes no difference whether the accused is a sitting or former head of state. But it makes an enormous practical difference that an incumbent ruler can do a lot more future damage to his people than an ex-ruler, and therefore should be given no incentive to retaliate.
As a result of Bashir’s policies, 300,000 people are estimated to have died and 2.7 million displaced in Darfur. The expulsion of the aid agencies has put over a million Darfuris at risk of epidemics and starvation.
According to the statute that established the ICC, the prosecutor is required to ensure that any prosecution is in the interests of the victims as well as of justice.
But, to lawyers like the ICC prosecutor, the abstract claims of justice are more vivid than any concrete duty of protection. In this case, justice comes with poisoned arrows.
Emboldened by the warrant and its elusive suggestion of international support, the Darfuri rebels, the Justice and Equality Movement, have walked out of peace talks with Sudan’s government.
Meanwhile, Bashir, with little to lose, will no doubt take the opportunity to attack his enemies. The counter-argument is that the threat of indictment will deter rulers from wicked behavior.
But the law will deter only if its sanctions are credible. A law that cannot be enforced deters no one. In fact, it weakens respect for law.
Moreover, while the fear of being hauled off to The Hague may have some effect in deterring rulers from committing crimes against humanity, the claim that the Bashir warrant will deter the current crop of human rights’ violators is derisory.
Indeed, it is likely to prolong wicked regimes. Robert Mugabe, for example, refuses to leave office – at great cost to Zimbabwe’s people – for fear of being put on trial.
Whatever the attractions of giving criminals “nowhere to hide, whatever the consequences,” the consequences cannot be ignored when the criminals are heads of state.
The policy of never negotiating with terrorists cannot be scaled up to state level when hundreds of thousands of lives are at stake. The charge of colonialism, meanwhile, is simply reflex: colonialism no longer exists.
The charge that international law is just “western law” is also rubbish. International law is the conscience of mankind. But the perception that the law is selectively applied happens to be true.
In the Nuremberg trial of 1946, which laid the basis of current international law, the main charge against the Nazi leaders was that of “planning and waging aggressive war.”
Prohibition of war except for self-defense is embedded in the United Nations Charter. But the ICC’s creators deemed the waging of aggressive war – which the International Military Tribunal at Nuremberg called “the supreme international crime” – to be outside the court’s jurisdiction.
This guaranteed legal immunity for the leaders who carried out the invasion of Iraq. The charge of selective application also applies to the Bashir warrant. Bashir stands accused of war crimes and crimes against humanity.
The latter were first defined in the Nuremberg principles of 1950 to include murder, extermination, enslavement, deportation and “other inhumane acts.”
In 1998, these other acts were clarified to mean false imprisonment, torture, rape, persecution of a group, enforced disappearance of persons, and apartheid.
It comes as no surprise, then, to read in the Arab News that Bashir’s warrant “reeks of hypocrisy.” Where, indeed, are the arrest warrants for Bush and Cheney? Does extraordinary rendition not count as “enforced disappearance of persons”?
Does the waterboarding of Khalid Sheikh Mohammed not count as torture? Why is Vladimir Putin not standing trial for war crimes in Chechnya?
The answer is simple: where the interests of a UN Security Council member or one of their clients are at stake, the court’s jurisdiction ends. The ICC is like a cobweb: small flies get stuck, but wasps and hornets get through.
Until the United States ratifies the ICC treaty, the Court is bound to seem to many to be little more than a politicized kangaroo court. Without American support, it has little hope of earning legitimacy, let alone doing its job effectively.
The Security Council has the power to defer the warrant for Bashir’s arrest for renewable periods of one year. It can do this indefinitely, and it seems likely that it will. The idea is that deferring the warrant will give the Security Council leverage over Sudan.
Gareth Evans, a former Australian Foreign Minister, has called it “a powerful diplomatic tool,” while the Washington Post has called for the warrant to be used “as a bargaining chip with Mr. Bashir and his Chinese and Arab allies.”
They believe that the threat of arrest can be used to force Bashir to mend his ways. If this proves true, the ICC and its sponsors have muddled justice with diplomacy. If the world can dispense justice only at the expense of the weak and to the advantage of the strong, it should stick to the older tools of crime prevention: force and negotiation, and leave justice out of it.
Robert Skidelsky, a member of the British House of Lords, is Professor emeritus of political economy at Warwick University, author of a prize-winning biography of the economist John Maynard Keynes, and a board member of the Moscow School of Political Studies.