The International Criminal Court faces political realities today that were not anticipated when the Rome Statute was so laboriously negotiated a decade ago. It’s commonly the case that an international institution develops in ways that its founders didn’t foresee””the UN itself is a prime example. While the immediate challenge to the ICC derives from Chief Prosecutor Luis Moreno Ocampo’s public application for an arrest warrant against President Omar al Bashir, more fundamental issues are also surfacing.

This posting reflects on three issues for the ICC that arise from the Darfur case. These are not the political and legal challenges posed by the Sudan government in its efforts to fend off the attentions of the ICC, but questions that relate to the rationale for ICC prosecutions themselves in weak and conflict-ridden states, such as those in Africa.

The first issue concerns the clash between the mandate of the ICC and other long-standing principles of international law. What is the jurisdiction of the Court over a country that has not ratified the Rome Statute? It is a fundamental tenet of international law that no state can be bound by a treaty to which it is not party. Sudan has not ratified the Rome Statute (and it’s unlikely that it will any time soon) and its rejection of the ICC is based on this. Many of the relevant arguments are laid out in Dapo Akande’s article on the topic. The UN Security Council referral of the Darfur case to the ICC may””or may not””override this principle. Sudan is a member of the UN and is bound by Security Council resolutions, especially those passed under Chapter VII, which includes the ICC referral. But just how far does the authority of the Security Council extend? Can its resolutions set aside basic principles that have governed state conduct for decades or centuries?

A similar question is, what is the authority for arresting a head of state? Under normal circumstances, a serving head of state enjoys immunity from arrest, but there are reasons to believe that this immunity may not hold in the case of the ICC and President Bashir. Dapo Akande has outlined why this may be the case in a posting on the website of the Oxford Transitional Justice Research project. The mandate of the ICC does not in any way preclude attributing criminal responsibility to a serving head of state, and indeed many would argue that the function of the Court is precisely to pursue such cases, which no domestic court would be likely to do. The ICC can only prosecute individuals on the basis of their individual criminal responsibility, and Moreno Ocampo duly insists that President Bashir is accused of individual responsibility for crimes. But his description of Bashir’s responsibility””at least in the press statement and summary of the public application, which is all we have to go on””is precisely that of the office holder of a head of state. The description provided at the 14 July press conference doesn’t preclude pursuing other prosecutorial options, but as Jens Meierhenrich has argued in his three postings, those avenues are not straightforward.

And there are some formidable legal principles and traditions which must be set aside if the President is actually to be arrested. The two precedents in this area””Slobodan Milosevic and Charles Taylor””are not of much use to the Prosecutor. In the Taylor case, the Sierra Leone tribunal sought to have the Liberian president arrested while attending a peace conference in Ghana. It is the oldest principle of international law that an attendee at a peace conference is protected from arrest, and the Ghanaians duly let Taylor leave for home rather than executing the warrant. Given that Bashir’s travels outside Sudan are for state purposes””attending summits and similar””it is arguable that his immunity as head of state would remain intact on those occasions. Bashir might also make a personal visit to Mekka to fulfill his religious obligations, but there would be an immense outcry across the Muslim world if the ICC were to try to apprehend him on such a visit.

A second challenge is the purpose and application of Article 16. This allows the UN Security Council to suspend an investigation or prosecution by the ICC for a period of one year. It is being very seriously considered as an option in the Sudan case. This is disturbing some of those involved in drafting the Rome Statute. In a recent column in the Jurist, David Scheffer points out that Article 16 was introduced into the text at the initiative of Singapore in order for the UNSC to have the option of suspending early investigations by the Court, subsequent to a referral by a state or the Court’s own initiative, if the UNSC considered that prosecutions might jeopardize peace. The sort of scenario that the delegates to the drafting conference had in mind was something akin to the early days of the ICC investigations in Uganda, in which the Ugandan government invited the ICC to investigate, hoping (with justification) that the ICC would discredit its enemies. In such a case, the UNSC might consider that ICC investigations or prosecutions, however legitimate, might be imperiling the prospects for peace, and should therefore be deferred. What the drafters did not have in mind, Scheffer points out, is the UNSC using Article 16 to suspend a well-advanced prosecution already authorized by the Security Council itself. Scheffer writes,

It would have astonished my colleagues and me in 1997 and 1998 to be told that Article 16, which was conceived as a compromise procedure to use at the infancy of a situation before the ICC, would be applied some day to short-circuit a Security Council referral lodged more than three years ago and years after the Prosecutor has initiated his investigation pursuant to such referral…. If that scenario had been presented to the negotiators more than a decade ago, Article 16 never would have been approved by the vast majority of governments attending the U.N. talks on the Rome Statute for it would have been viewed as creating rights for the Security Council far beyond the original intent of the Singapore compromise.

Should the UNSC utilize Article 16 in the Sudan case, it is at best countermanding its earlier resolution and at worst using the ICC as a point of leverage to extract political concessions. Ironically, it is precisely this combination of a referral by the UNSC and the possibility of an Article 16 deferment, that makes the ICC a very effective mechanism for exerting political pressure. Khartoum’s new-found readiness to cooperate with international proposals for addressing the Darfur crisis demonstrates this. But using the ICC as an armtwist against abusive regimes, that can be tightened or slackened for political ends””albeit avowedly humanitarian ones””is a very different guiding principle than the pursuit of justice without fear or favor.

The third principle under scrutiny is complementarity. The Rome Statute specifies that the Court should take up cases in only those cases in which domestic judiciaries are demonstrably unwilling or incapable of doing so. This is a logical first principle for the ICC. It prevents the Court wasting its time on cases that national courts can take on and precludes the possibility of “court shopping” between national and international jurisdictions.

The problem with the complementarity principle in Sudan is that the ICC referral has contributed to paralyzing domestic judicial processes. (I examined this in my posting on justice in the Darfur peace process.) Because ICC investigations, arrest warrants and prosecutions are selective and high profile, the entire process of accountability becomes more sharply politicized. We see variants of this in other African countries, in which the ICC process similarly displaces and alters national processes of justice and reconciliation. The African Union’s strong stand against the application for an arrest warrant against President Bashir, backed by among others Presidents Museveni and Kagame, indicates not only sensitivities over national sovereignty but also a deep fear that the internationalization of justice forecloses the options of finding national solutions to the challenges of post-conflict reckoning. We can expect to see countries like Nigeria and Mozambique, which achieved peace without judicial accountability, being presented as models for African conflict resolution.

There is a revealing parallel with the vision of a global liberal peace that replaces an international order based on states. As noted by Michael Howard in The Invention of Peace,

The trouble is that the state not only makes war possible: it also makes peace possible. Peace is the order, however imperfect, that results from agreements between states, and can only be sustained by that agreement. It is not clear what alternative creators and guarantors of peaceful order could or would take the place of state in a wholly globalized world. The state still remains the only effective mechanism through which people can govern themselves, and it reaches the limits of its legitimacy at the point where its inhabitants can no longer accept it as representative of their community. When that point is reached they can only create new states.

Howard’s point is that a globalized world order cannot create global peace””states are the building blocks and should not be weakened to the point at which they cannot fulfill their obligations. By the same token, it is states that make justice possible and oddly enough, it is the hardest cases, such as Sudan and the DRC, which illustrate this. Just as peace cannot be imposed, neither can justice. The demand for justice in Darfur cannot be met in a socio-political vacuum, and the greater challenge is to fill that vacuum with social and political processes of making peace and establishing stability.

These considerations don’t make the ICC irrelevant. Quite the contrary, they require the ICC to be more capable, and more engaged with the institutional and political realities of the countries where it is working. If the principle of complementarity is to be useful, in the African context at least, the ICC needs to find a ways of working to complement national efforts. Even in the hardest cases like Sudan. And if an Article 16 deferment of the Sudan case is to be considered, both the ICC and the UN Security Council need to examine how this can be done without reducing the Court to an instrument of political pressure akin to sanctions.

The risk for the ICC is that adhering to what Chidi Odinkalu has called “international justice fundamentalism” will consign it to being a child of that brief moment of liberal triumph in the 1990s, when it seemed as though the future was a global hegemony of the rule of law. It might rapidly become an anachronism, left behind on the beach when the tide turned””still with powerful backers but facing ostracism from Africa, backed by many countries in Asia and the Middle East. Whatever happens in the coming months, the ICC will emerge as a different entity to that envisaged a few years ago.