The ICC, Sudan, and the Crisis of Human Rights

The ICC arrest warrant against President Omar al Bashir heralds a new era for global governance and human rights. But it is not at all clear what will be the character of this new era. Is Luis Moreno Ocampo the vanguard of the human rights international, bringing a new dawn of justice and accountability, in which tyrants quiver at the prospect of the fearless prosecutor, speaking for the voiceless victims, armed only with the precious norms of universal human rights? Or is the Prosecutor a stormtrooper for judicial neo-colonalism, kicking down the doors of others’ hard-won independent sovereignties, brushing aside the protests of peace mediators, to demand the unconditional surrender and handcuffing of those without the protection of a superpower?

Let me argue that the Bashir arrest warrant is something else—a moment of crisis in the project of building a global human rights order. The immediate cause of this is Moreno Ocampo’s overreach. Possibly his status as a celebrity prosecutor, feted by the Hollywood stars who have converged on the Darfur crisis, led him astray.

In turn the fact that the Prosecutor was able to demand an arrest warrant against a sitting head of state, without the possible risks for peace and security being subject to debate at the UN Security Council, reveals a major weakness in the international architecture. The Rome Statute of the ICC requires the Prosecutor to consider the interests of justice and the victims when deciding whether to prosecute. But he is within his rights if he interprets this is a narrow and negative obligation, which is only not to prosecute if the individual characteristics of the accused (age or mental state) don’t allow for a meaningful trial, or if the victims and witnesses might be harmed by a prosecution. The UN Security Council has the responsibility for weighing the interests of peace and security. But with the U.S., Britain and France (the ‘P3’) all sensitive to the demands of domestic activist constituencies, and the Secretary General abdicating any responsibility for the issue, the Council has done nothing except rebuff the entreaties of the African Union.

No mechanism or institution has safeguarded the interests of peace or represented those whose overriding concern is peace. Unconstrained by any countervailing or moderating considerations, the Prosecutor has had his way. The Pre-Trial Chamber that threw out the genocide charges did so solely on evidentiary and legal grounds—the Prosecutor had not met their (rather low) threshold of demonstrating that Bashir had a case to answer on those charges. Politics did not intrude into their deliberations.

There is also no mechanism which obliges the UN Security Council to listen its African counterpart. More than 60 percent of UN Security Council business concerns Africa, but there are no permanent African representatives on the Council and Africa has no veto. Last July the African Union Peace and Security Council voted for the ICC action against President Bashir to be suspended. Twice the AU petitioned the UNSC for this to be considered, twice it was rebuffed. African governments, including Sudan’s neighbours, argue that the P3 have the luxury of endorsing high principles to satisfy their domestic constituencies, but it is Africans who will pay the price if Sudan’s peace agreements unravel. It is African peacekeepers who are in the front line if Darfur explodes. This division of responsibilities was workable when the UN Security Council was sensitive to African concerns, and Africa had no option but to go along with P3 dictat. It’s no longer acceptable. The mantra ‘no peace without justice’ is not a substitute for political analysis.

And in turn, this tells us much about how the world now looks different to when the Rome Statute was adopted eleven years ago. In 1998, at the zenith of unipolar western hegemony, when history had been briefly interrupted (not, it turned out, ended), the march of liberal values and norms seemed unstoppable. There was no contest over human rights, only over the speed at which they would be enforced.

Today, global governance and especially its human rights component, is rather more contested. The American ‘might is right’ project was neither as mighty nor as smart as the neo-cons anticipated, substituting too much wishful thinking for facts and analysis—a shortcoming that seems to be shared with the enthusiasts for indicting Bashir. China and Russia always saw the world differently to America, and are more confident in saying so, while smaller countries such as Iran and Venezuela are emboldened to challenge the wounded Leviathan. Africa’s democratic progress has stalled (though not yet reversed).

Africans were the early enthusiasts of the ICC and it was African ratifications that ensured that the Rome treaty came into effect in 2002. The Court’s first three cases were all referred by African governments. This fact is cited by those who want to argue that the ICC is not unfairly singling out Africa. But the ICC’s advocates should be a little more attentive to how Africans understood the role of the Court at that time—they expected that it would work in partnership with African NGOs and judicial systems to develop comprehensive justice and peace responses to crises such as northern Uganda and DRC. And at first, Moreno Ocampo advocated this joined-up and locally-sensitive approach—as late as 2005 he told the Assembly of States Parties that governs the ICC, ‘We reached consensus that we are bringing a justice component to a comprehensive effort to achieve justice and reconciliation and bring an end to violence in northern Uganda.’ He indicated he wouldn’t take any step that might endanger peace.

Moreno Ocampo’s tune changed. Last month he told Foreign Policy journal that there should be no negotiation with President Bashir and that the Court is ‘a fact’ and ‘I’m sorry if I disturb those who are in negotiations.’ Increasingly, the Prosecutor sounds like an NGO activist—Save Darfur with legal powers. He should not be surprised that African governments and activists are also changing their tune. The reasons for governments’ unhappiness is self-evident. Human rights activists are worried about a backlash in which they will become victims, without anyone to protect them (least of all a Prosecutor whose careless insinuations about the sources of his evidence exposes national activists and humanitarian organizations to the suspicion of having conducted investigations on his behalf). They are also worried that the project of building justice at the local and national levels will be jeopardized by association with the Court.

The Sudan Government rejects the ICC as part of a neo-colonial conspiracy. It is easy to scoff at this—there has been too little coordination, let along conspiracy, among the internationals to make this a credible allegation as such. But the neo-colonial charge resonates. Western powers are ready to subject Africa to intrusive experiments in governance that they would never allow at home and could never impose on major powers. In New York, Washington DC or London, Africa’s voices can be ignored without consequence.

It is inconceivable that the British Government would permit the ICC to investigate crimes committed in Northern Ireland, either by the IRA or the security forces. Some might argue that the ICC should have jurisdiction because the UK is a State Party to the Rome Statute and it shows no interest in prosecuting these crimes—having extended a de facto amnesty that the ICC cannot in law recognize. The interests of peace in Northern Ireland mean that the victims of these abuses will never see their perpetrators brought to a British court. In the U.S., President Obama is in no rush to prosecute members of the previous Administration for what he recognizes correctly as torture and surely will not allow the ICC to do the job that the U.S. courts are unwilling to do.

Archbishop Desmond Tutu wrote recently in support of the ICC, asking ‘Will Africa let Sudan off the hook?’ What Tutu didn’t mention was that in the 1990s he himself ‘let Apartheid off the hook’ with his Truth and Reconciliation Commission, which involved granting amnesty to those who confessed—a process that would be impossible today in the presence of an ICC Prosecutor in uncompromising mood. The TRC showed that there are forms of justice other than retributive justice in a courtroom. If they were in command of their own destiny, it is likely that Sudanese would set up something like the TRC.

The double standards matter because human rights are a matter of politics and power. The Prosecutor likes to project an image that he is an essentially powerless individual, battling the world’s dictators and war criminals, armed only with the truth. But his decisions have real consequences. Most probably, when Sudan refuses to comply with the arrest warrant, the Prosecutor will demand that the UN Security Council impose sanctions or undertake military action to execute an arrest. The Prosecutor’s six monthly report on Darfur is due in June so this is the likely occasion for such a demand. We will hear a lot of rhetoric about justice and obligations that cannot be compromised or negotiated. It’s unlikely that we will see military action conducted in the name of human rights, but it’s not impossible.

One of the many tragedies in the ICC’s Sudanese adventure is that it may signal a turning point for international justice, but in the opposite way to that hoped by the Court’s advocates. It’s possible that the Libyan campaign for African countries to de-ratify the Rome Statute may gain some traction, at least insofar as Africa freezes its cooperation with the Court. It’s probable that, quietly encouraged by China and Russia, African governments will rediscover the value of a hard interpretation of sovereignty. They will remind the rest of the world—as Sudan is doing now—that foreigners are guests in their countries and should behave accordingly.

The ICC has brought on a crisis for human rights in Africa. This crisis has no obvious solution, save the reminder that where human rights are most enduring, it is because they have been struggled for and won by citizens, country by country.

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12 thoughts on “The ICC, Sudan, and the Crisis of Human Rights

  1. Great piece of writing, really shows the problems faced by the ICC trying to lay charges against a head of state.  The international media certainly made a meal of the whole arrest warrant, they made it look like the good guys were finally going to catch the bad guys.

    In Africa, sovereignty will always trounce human rights.

  2. Dear Dr. Alex,
    My response will start with the summary part of your commentary -”the ICC has brought on a crisis of human rights in Africa……..”

    No, there are and there have been crises in Africa without ICC in fact, its one of the few things Africa is capable of doing by itself without external intervention.  True, there are few crises in Africa where there are no external involvement but, this has always added new dimensions to already existing crises.  Since we can hardly point out an African crisis that started and ended without interference from beyond its supposed geographic confines, we cannot accurately  tell whether any crisis was exacerbated or subdued by this intervention.

    The ICC indictments against President Bashir has only added a dimension to the already existing crisis and has indeed, admittedly, dampened (not killed) prospects of peace negotiation.  If Sudanese and other peace loving Africans look at this as a chance for a new beginning then, they would help get out of the way, the stumbling block against   meaningful peace.  Can we look at the ICC indictments as a personal crisis for a president who used his power in aiding and abating the murder of hundreds of innocent citizens?  I am all for these indictments against leaders of any sort, who keep killing and cause to kill innocent people while unconcernedly smiling in front of television cameras.  Simililar charges should be laid against the Darfurian rebel leaders if they are found to conduct their wars, possibly with justifiable causes, but in complete disregard to  human deaths they inflict on people along the way. 

    The indictment of President Bashir will worsen the crisis because of two reasons; one, those behind the work of International Criminal Court are one dimensional actors who apart from the support they give to the court to do its job, they are not willing to step in and mitigate secondary consequences  resulting in the court’s revolutionary work.   Two, African leaders (many of them no better than Bashir) are worried of their own fate if a precedent is set.  so, this ‘leave Bashir alone’  stance has a lot to do with their own personal fears.

    Whatever problems President Bashir indictments cause, should reflect the lack of fore planning on the part of all those behind the existence of ICC.  An indictee should not be allowed the luxury of throwing out aid agencies who are sustaining the only life line for the surviving victims of his alleged crimes.

    The international campaign against human rights abuse should, on the other side of the coin be, a campaign for human rights.  An oxymoron may be,  but the fight against a human rights abuser  should consciously be extended to protecting the abused.  Indicting President Bashir without protecting the right to food, shelter and respect to his victims, is a job half way done -and the un done part is way, more important.

    The argument of neo-colonisation on the part of those indicted or those whose who owe their privileged life style to those indicted, is the most annoying.  Its pathetic to hear leaders who for years presided over a government of a country whose citizens have been murdered, mimed, abused in all forms possible all of a sudden,  becoming Pan Africanists and siting any and all anti-imperialist slogan they can recall.  

    Pan Africanism is not mere sloganeering.  Pan Africanism is taking actions for the improvement of the livelihood of Africans, defending their rights both human and material.  As they charity begins at home , you cannot be Pan Africanist when you show no feelings for the suffering of your own people.  Crying anti-imperialism when you have presided over the demise of hundreds of thousands of your own country men, sounds hollow to the least.  Its an afront to true Pan Africanism.

    Without doubt, there are double standards being played at the world stage where the western governments behave like pigs in ‘the animal farm’ (George Orwell).  But to extend the same arguement, African leaders behave like orwellian pigs,  in their own countries.

    At least, to be the devils advocate, the european or American leaders cannot commit,  in their own countries, the same crimes african leaders commit on their fellow country men/women, and get away with it.    Bush could not do in USA what he did in Iraq.  At least for staters, African leaders should have the basic morality to restrain themselves from deliberately harming the people they are supposed to protect.

    I do not wish to come off as being Africa bashing because Iam not.  There are many shining examples accross the continent who give us hope that one day in the near future, freedom will reign across hills and valleys of our beautiful continent.  Botswana, Tanzania, South Africa, Ghana are examples to follow.  Sudan , Zimbabwe and others in a similar trend, whatever are the reasons or excuses for the existing state of affairs, it is unacceptable.   The ICC indictements can work as deterrent measures against those despots who have no feeling whatsoever for the suffering of the people.

    If other Africa leaders feel spited by the west and abandon all attempts to forging peace in Sudan, it will not be the west that will suffer but Darfureans, Sudanese and Africans.  So, better to put aside egos and work for the betterment of those that have been suffering long before ICC indicted President Bashir, and will continue to suffer after the indictments.   

  3. Pingback: Sudan and the International Criminal Court « Africa Indaba

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  5. I would like to first of all thank Alex for the elaborate and i should say balanced article posted.

    The warrant of arrest issued to the sitting Sudanese president has come to be perceived with mixed feelings on the continent and I would like to make my contribution in regard to the mixed feelings that have been invoked by the issuance of the warrant of arrest. .
     
    First and foremost if the arrest takes place it would have set a very serious precedence on the continent and probably the autocratic leaders would definitely carry out their mandates of governance more cautiously in light of human rights abuses and in the protection of civilians and their properties. This explains why many of the leaders in Africa who are having similar conditions of gross human rights abuses in their countries are so very much against the arrest warrants because it dawns down to them that when this precedence is set next in line would be them.
     
    To me this has merits that I felt I should highlight, point in case is that more good governance practices will be embarked on by many of the leaders on the continent, and the opposition parties will be more tolerated to operate with less prosecution of leaders and members of the parties and their activities.
     
    African leaders will change their attitude towards the notion of staying in power till death do us part with government because they will realise that the more time spent in power the more likely one becomes susceptible to embark on coercive means and disregard of human rights in a bid to keep the preserve of power. 
     
    However I do agree that Sudan is an isolated case that sees the big guys trying to prove a point to the small guys because all the northern and western powers are now like never before busy defending the warrant of arrest issued against President Omar Bashir and are forgetting so hastily that they were very silent last December 2008 as we transited into 2009 as the world witnessed the gross violation of human rights and miming of young innocent Palestinians children. Aid agencies were denied access to help the people caught up in the indiscriminate bombardment, United Nations schools and properties were destroyed and one would think that these would be the areas to seek refuge in times as desperate as these. This creates a mythology that as long as these acts of gross violation of human rights are in the interest of the countries that call the big shots on the international scene then it is fine for things to happen this way without question.
     

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  8. [...] Alex de Waal raises more concerns: In turn the fact that the Prosecutor was able to demand an arrest warrant against a sitting head of state, without the possible risks for peace and security being subject to debate at the UN Security Council, reveals a major weakness in the international architecture. [...]

  9. Pingback: Is the ICC’s Indictment of Omar al-Bashir Helping or Hurting Peace in Sudan? « Sahel Blog

  10. Pingback: Is the ICC’s Indictment of Omar al-Bashir Helping or Hurting Peace in Sudan? - The Seminal :: Independent Media and Politics

  11. It is healthy to have criticisms of the ICC and question it. However, it is also important to realize that the ICC can really be this force of international justice that serves as a strong, effective mediator in international conflicts. Just as Alex stated,

    ” In the U.S., President Obama is in no rush to prosecute members of the previous Administration for what he recognizes correctly as torture and surely will not allow the ICC to do the job that the U.S. courts are unwilling to do.”

    This is why we need the ICC to do what the US refuses to do, not only that, but hopefully have the US join the ICC one day. If the ICC can be this force of international justice and harness enough power, then other countries will follow suit. There have been many positive things that the ICC has done as well, especially in the case in Sudan. IJCentral believes that ICC’s indictment of Omar al Bashir is indeed helping the Sudan.

    Visit http://www.ijcentral.org to find out more up to date information about the activities of the ICC. IJCentral is a resource of articles, blogs, discussions, and videos about the ICC. It would be another place to hold open discussions about Sudan and other activities of the ICC.

  12. ICC is a very good institution and should be supported. At the same time, I am a little bit concerned like many of its close relationship with the United Nations Security Council. The United Nations Security Council is a purely power based and political institution which should remain miles aways from the judical system. As you can see now, the Africa Union is not confortable with the fact that the Sudan situation was  referred to the court via a UNSC Resolution because the UNSC is not democratic at all. Those permanent -5 countries will always protect their own interests at the expense of international justice. Recently, it came out clearly that the UK violated international law by invading Iraqi, and do you think Mr Tony Blair will be send to the Hague? How about the recent revelations that in Occupied Territory of Palastine (OTP) the Goldstone Report about possible war crimes, do you think ICC will be involved even with the recent reports that the Israel Army took body parts from those killed in the conflict, I do not see Ocampo and his team leading in Telviv. Where does this leave us then? It leaves the ICC focusing on the poor states, the small fish like Kenya, Uganda Sudan, now maybe in Guinea !!!

    I am sure it makes sense to say the International Criminal Court is a court for the poor and developing countries

    There is need for consistancy is the ICC is to maintain its status and global legitimancy as a ‘gift of hope’ like former UN Security General once said.

    With double hope

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