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.