Indicting Bashir won’t bring peace or justice

Predictably, the ICC’s arrest warrant for Sudan’s president has created a backlash against aid workers and crippled hopes of an end to war.

Philip Hammond

12th March 2009

The recent decision by the International Criminal Court (ICC) to issue an arrest warrant for President Omar al-Bashir of Sudan, over his and his allies’ actions in Darfur, has been widely understood as illustrating the difficult tension between justice and peace (1). In reality, the ICC’s decision has little to do with either peace or justice in Sudan. Rather, it is about asserting the moral authority of the court and its Western sponsors.

At first glance, Khartoum’s condemnation of the court as a ‘mechanism of neo-colonialist policy used by the West’ may seem off target (2). The ICC itself lacks any means of enforcement and no-one else looks set to send in the gendarmes. Three of the five permanent members of the United Nations Security Council (Russia, China and the United States) have not even ratified the treaty establishing the court. In contrast to their more gung-ho attitude on Darfur when they were out of office, leading figures in Barack Obama’s administration now appear cautious, and Western diplomats reportedly acknowledge privately that ‘the warrant could compound an already “difficult and complicated situation” in Sudan’ by derailing shaky peace agreements (3).

Concerns about the impact of the arrest warrant on peace negotiations are well-founded. One of the main rebel groups in Darfur, the Justice and Equality Movement, which last month agreed to peace talks, reacted to the ICC’s decision by rejecting any further negotiation with the Khartoum government (4). Any peace agreement must depend on compromise between the parties – but by lending moral support to the Darfur rebels and criminalising the government, the ICC and other international actors have made any such conciliation far less likely. Perhaps even worse, in signalling that the government of Sudan is not a legitimate negotiating partner, the ICC’s decision may also sabotage the fragile agreement which ended the decades-long conflict in southern Sudan (5).

None of this is surprising; the ICC has form in this area. In Uganda, where the ICC indicted the leaders of the Lord’s Resistance Army, the government asked that the court’s charges be dropped in order to facilitate a peace settlement (6). In committing the same error in Sudan, the ICC seems to think it can act with impunity, pursuing its indictments and warrants regardless of their impact on weak and unstable states.

For the ICC and its supporters, the idea that the court is above practical political considerations is a point of pride. When asked about the impact of the arrest warrant on the peace process in Sudan, ICC spokesperson Laurence Blairon insisted that: ‘The findings of the judges are made on purely legal criteria. This is really important – the court is not a political institution. It speaks the language of the law.’ (7)

Yet the problem is not simply that the court does not stoop to concern itself with the real world of politics in the states targeted by its prosecutions. In the case of Sudan, disrupting peace negotiations appears to have been intentional rather than just an accidental side effect of the indictment of Bashir. In a recent interview, the ICC’s chief prosecutor, Luis Moreno-Ocampo, argued: ‘We need negotiations, but if Bashir is indicted, he is not the person to negotiate with. Mr Bashir could not be an option for [negotiations on] Darfur, or, in fact, for the South. I believe negotiators have to learn how to adjust to the reality. The court is a reality.’ (8)

As Sudan adjusts to the new reality, the most immediate effect of the arrest warrant has been to prompt the government to expel foreign aid workers, worsening the situation for refugees from the conflict in Darfur. To some observers, this is simply further evidence of the wickedness of the Khartoum regime, but Moreno-Ocampo surely bears at least some responsibility. As seasoned Sudan analysts Julie Flint and Alex de Waal note, the prosecutor has repeatedly hinted that he obtained the information for his indictment of Bashir from humanitarian agencies (9). Moreno-Ocampo’s careless, high-handed conduct does not show that he is somehow above mundane political considerations, but that the ICC’s agenda is shaped by the politics of the West.

Advocates of the ICC claim that the local peace process cannot succeed and that long-term peace can only be brought about by ‘justice’ imposed from without (10). No wonder that in Africa the ICC is widely seen as a neo-colonial institution. The idea that weaker states must be regulated and policed by the ‘international community’ has provided the justification for Western wars and interventions from Somalia at the start of the 1990s to Iraq a decade later.

The proposition is always packaged in the most strident moral rhetoric and, in arguing for the prosecution of Bashir, Moreno-Ocampo has acted more like a propagandist than a lawyer, making unfounded claims about ‘ongoing genocide’ and comparing the Sudanese government to the Nazis (11). Moreno-Ocampo has also exaggerated the extent of the violence, claiming that genocide claimed 5,000 lives a month in Darfur during 2008, when the true figure for violent deaths, according to the UN, was 150 a month, more than half of them soldiers, militiamen, rebels or others engaged in armed conflict (12).

In a decade which has seen the Middle East torn apart by violence, the worst of it initiated by the US and its allies, the ICC has chosen to focus exclusively on conflicts Africa. Evidently the court still operates according to the principle expounded by the late Robin Cook, Britain’s foreign secretary when the ICC was being established, who ventured: ‘If I may say so, this is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.’ (13)

Double standards are now so well ingrained that they pass virtually unnoticed: one commentator recently urged President Obama to seek a ‘guarantee that American soldiers and officials will not be the target of political prosecutions’, in order that the US could ratify the court’s founding treaty (14). It seems that only hypothetical prosecutions against Western governments are regarded as inevitably ‘political’, whereas actual prosecutions targeting weak states are seen as impartial justice.

Such thinking exposes the fiction of ‘international law’ as it is currently understood: it is supposed to operate independently of political realities, but in fact simply serves to obscure the sources of power and the inequalities between states. This is how activists can become convinced that they are ‘anti-war’ as they call for Western troops to be sent ‘Out of Iraq, Into Darfur’. Indeed, the ICC’s indictment of a sitting head of state even rehabilitates the notion of ‘regime change’, so discredited by the Iraq War, by re-presenting it as the pursuit of justice.

Philip Hammond is reader in media and communications at London South Bank University, and is the author of Media, War and Postmodernity, published by Routledge in 2007 (Buy this book from Amazon(UK)).

Previously on spiked

Tara McCormack felt the decision to prosecute al-Bahsir was designed to make the West feel good. David Chandler analysed ‘the death of foreign policy’. Philip Cunliffe argued that Darfur had been colonised by ‘peacekeepers’. Brendan O’Neill looked at the prostitution of the notion of genocide. He also argued that Darfur was damned by pity, while in 2004, he called the proposed Sudanese intervention a post-Iraq politcal stunt. Or read more at spiked issue Africa.