Introduction

Officially, the thirteen NGOs expelled from Sudan after an international arrest warrant was issued against Sudanese president Omar al-Bashir were being punished for their “violations to the laws of the humanitarian work” in cooperating with the “so-called International Criminal Court.”(1) By all appearance, this explanation reflects only some of the regime’s motivations. Yet, the accusation of collaboration between the ICC and the humanitarian NGOs puts the latter in an awkward position. To be convinced of this, one need look no further than their convoluted denials about their supposed or real ties to the Court.(2)

Indeed, many humanitarian organizations lobbied in the 1990s for an International Criminal Court, then considered “a necessary response to the trivialization of mass crimes.”(3) To this day, most NGOs believe that the ICC “can play a vital role in the effective protection of civilians, the consolidation of long-term peace, and the prevention of future atrocities and renewed conflict.”(4)

During the last few years, humanitarian NGOs have certainly come to recognize that active participation in criminal investigations was likely to hinder their aid mission. It is difficult to get through a military checkpoint in a war zone while you’re denouncing the people who control it to the International Criminal Court. But except for the International Committee of the Red Cross(5) and, more recently, Médecins Sans Frontií¨res (MSF)(6), few organizations have drawn the logical conclusion that only a clear, transparent policy of non-cooperation with the ICC is compatible with the goal of helping, with total impartiality, the victims of war. The vast majority of NGOs have rejected such a commitment, preferring to choose on a case-by-case basis between humanitarian action and collaborating with the ICC to fight impunity.

This reluctance – which also exists at MSF, where the policy of non-cooperation with the Court has sparked internal resistance – can be explained by the inherent support of the humanitarian world for the idea of an international criminal justice system. Borrowing the discourse of human rights organizations, international jurists and liberal internationalists(7), most aid actors credit the ICC with three major virtues: it would offer “effective protection” to civilian populations and relief workers; it would contribute to the pacification and reconciliation of societies at war; and finally, it would be the seed for a more just international public order.

These assertions rest on very debatable foundations. This essay hopes to point out the fragility of the arguments most often used by humanitarian organizations to justify their support for an international criminal court, in particular by drawing on the work of magistrate and essayist Antoine Garapon, journalist Pierre Hazan, and international law professor Martti Koskenniemi.

Protection

DETERRING CRIMINALS

To begin with, what does the statement “the ICC protects civilian populations and humanitarian workers” mean? It would seem the expression often reflects a purely idealistic view of justice, triumphing over violence by virtue of its judgments alone. The Court need only pronounce judgment in keeping with the law and reason for justice to be done.(8)

Thus, explains Amnesty International Secretary-General Irene Khan, the announcement of an arrest warrant for the Sudanese president “is an important signal – both for Darfur and the rest of the world – that suspected human rights violators will face trial, no matter how powerful they are.”(9) And how will they be surrendered to their judges? By turning themselves in to the Court: “The law is clear. President al Bashir must appear before the ICC to defend himself. If he refuses to do so, the Sudanese authorities must ensure that he is arrested and surrendered immediately to the ICC.”

To the question “What will the effect of the warrant [against President al-Bashir] be on humanitarian agencies [threatened by government reprisal],” Human Rights Watch responds: “The warrant does not change Khartoum’s obligation to abide by international law,” which “requires the government to ensure the full, safe, and unhindered access of relief personnel to all those in need in Darfur.”(10)

More pragmatically, ICC advocates maintain that it would protect civilian populations by virtue of its deterrent qualities. The threat of sanctions would restrain criminals from committing mass crimes. “The principle objective in creating the ICC is to deter those individuals intent on using crimes against humanity to further their political aims,”(11) asserted Médecins sans Frontií¨res in 1998.

Such reasoning assumes that extreme violence results from a lack of effective judicial mechanisms for punishing the perpetrators. According to this reading, mass murder and deportation can be explained by the deviant behavior of leaders “intent on using crimes against humanity to further their political aims.” This discourse bears a troubling resemblance to the authoritarian rhetoric of domestic policies calling for stern repression to contain “the rising tide of insecurity” resulting from the “impunity” enjoyed by potential criminals (whether they belong to the dangerous classes or are destined for crime by nature!)

But beyond this repressive approach (questionable, though not totally absurd), what is misleading is the use of the ordinary crime paradigm to address mass atrocities.(12) The extreme violence that the ICC is being called upon to judge is not a collection of isolated incidents attributable to a handful of sociopaths unacquainted with international law and standards of moral behavior, but rather the fruit of political agendas, requiring the collaboration of large segments of society, if not the entire State apparatus, and the complicity of a legal system in itself criminal. The collective and political dimension of the crimes prosecuted by the ICC raises specific questions on its deterrent function.

First question: who should be judged, and who deterred? Should the ICC target high-ranking political and military leaders, or the middle levels of the hierarchy, or even the people who are simply carrying out orders? The practical impossibility of judging everyone involved in the realization of mass crimes means having to arbitrarily choose who should be charged. Not all the guilty will be brought to justice. From the standpoint of the punitive paradigm itself, this weakens the deterrent power of the punishment – not to mention the court’s legitimacy, which derives, at least in part, from the equality of all before the law.

Next, to what degree does fear of punishment deter criminals who are acting on behalf of some grand collective utopia aimed at transforming man, society and the world? The history of the 20th century, writes Martti Koskenniemi(13), shows that all too often the politics of mass murder “have not emerged from criminal intent but as offshoots from a desire to do good”:

“This is most evident in regard to the crimes of communism, the Gulag, the Ukraine famine, liquidation of the “˜Kulaks’. But even the worst Nazi nightmares were connected to a project to create a better world. Commenting upon the speeches of Heinrich Himmler to the SS in 1942, Alain Besaní§on concluded that even the death camps were operated “˜au nom du Bien, sous le couvert d’une certaine morale‘. But if the acts do not evidence criminal intent, and instead come about as aspects of ideological programmes that strive for the good life, however far in the future, or to save the world from a present danger, then the deterrence argument seems beside the point. In such case, criminal law itself will come to seem a part of the world which must be set aside, an aspect of the “˜evil’ that the ideology seeks to eradicate.”

The deterrence argument is equally weak for those who interpret mass crime from Hannah Arendt’s perspective – by rejecting the hypothesis of “radical evil” and looking instead at the role of “ordinary men” in carrying out administrative mass murder. In this view, it is submission to authority, conformity, and dissociation from reality – when the latter is seen only through the prism of bureaucratic organization and language – that make extermination policies possible. From this perspective, mass crime depends less on the ideological fervor of its perpetrators than on their refusal to think for themselves and dissociate themselves from their membership groups.

Can the International Criminal Court deter people involved in policies of mass murder from conforming to the expectations of their colleagues, their hierarchy, their groups, their government and their society? Under what conditions can “praise for disobedience”(14) be understood by Darfur militiamen, young Sudanese Army recruits, or rebel combatants? A priori, it seems unlikely that an international court can teach people to be heroes, particularly when the meaning of heroism is at the heart of the conflict between the political system that’s on trial and the international system that’s organizing the proceedings.(15)

Finally, we should point out that it is the threat of punishment, rather than punishment itself, that might potentially have a deterrent effect. Once the latter has been handed down, the criminal has nothing left to lose. Within a week of the ICC’s arrest warrant for the Sudanese head of state, the Khartoum government committed a new series of war crimes, ranging from blocking humanitarian aid to kidnapping humanitarian workers, including the looting and use by Sudanese security forces of MSF’s vehicles, communications devices, and personal identification. So while the threat of charges could act as an incentive in negotiations between the international community and the Sudanese government, the announcement of charges against the Sudanese president drove him into a corner.

Ultimately, the deterrence argument is relatively weak. It’s not a matter of challenging the argument as a whole, or of denying that under certain conditions international criminal sanctions may have the power to restrain political leaders or their subordinates. But these effects are by no means guaranteed, and are largely determined by circumstance and the political strategies governing the use or threat of sanctions. As far as relying on the fear of international criminal charges to protect humanitarian relief efforts is concerned, we can only stress that it is a risky bet. Should the Security Council drop the charges against the president in exchange for allowing the thirteen expelled NGOs back into Sudan, the latter would find themselves more than ever in the position of hostages, dependent on a “judicial corridor” likely to close off again at the slightest diplomatic bump.

ENLIGHTENING FUTURE GENERATIONS

Aware of these limitations, ICC advocates maintain that the Court’s function is actually more pedagogical than deterrent. By testifying to the reality of crimes and unmasking the mechanisms by which they are carried out, the International Criminal Court would be contributing to the moral and political enlightenment of present and future generations. By “telling the truth” and “establishing an accurate historical record”, the ICC would contribute to raise awareness and to prevent the return of political processes leading to genocide and mass murder(16) .

While the International Criminal Court can potentially help document and publicize extreme violence, it does not necessarily help people understand it. According to Antoine Garapon, by reducing political crime to the immorality of a few leaders (“bad men do bad things”), the punitive justice paradigm gives up on “understanding the causes of the evil it wants to combat, and doesn’t attempt to fathom the mechanisms in order to find how best to prevent them.” (17)

Interpreting the massacres and deportations perpetrated in Darfur as the product of the political ambitions of a single man willing to commit crimes against humanity to stay in power does little to shed light on or contest the logic of Sudanese violence. Omar al-Bashir’s greed and lack of scruples fail to explain why every successive Sudanese regime since the 1980s (whether socialist, Islamist, or military-financial opportunist) has employed the same counterinsurgency terror tactics against the armed opposition movements protesting the flagrant social, economic and political injustice in Sudan. The brutality of the Khartoum elite’s domination over Sudan’s outlying regions, the racism of a post-slavery society that dares not confront its past, the truly existential struggles between nomadic and agrarian societies for access to land and political representation, and the ties of hostility, cooperation and dependence between Sudan and its neighbors (Chad, Libya, Eritrea, etc.) and the rest of the international community are just some of the elements at the root of the extreme violence that the language of the criminal court is incapable of grasping.

The discourse of criminal justice understands historical events strictly in terms of the crimes they have engendered. Its view of conflicts is that of chaos and generalized crime. It offers no analysis of the causes of violence, but only judgment and condemnation of its perpetrators – an ahistorical judgment based only on the objective rationality of the law.

As Garapon points out, there is something religious about this rejection of the political, and he concludes: “Unlike political action, which is necessarily impure, legal judgment presents itself as a pure action, perhaps the only one imaginable in a world debased and corrupted by violence. What gives the enthusiasm for the International Criminal Court its gnostic flavor is the [refusal] to confront the complexity of historical relationships, to come to terms with the inherent violence of politics – in short, [the desire] to forget about the political condition of humanity.” (18)

Fabrice Weissman is Research director at the Centre de Réflexion sur l’Action et les Savoirs Humanitaires (CRASH/MSF).

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Notes

(1) “Sudan says decision to expel aid groups is irrevocable,” Sudan Tribune, 8 March 2009
(2) See, for example, “NGO expelled from Darfur considered ICC cooperation,” Reuters, 16 March 2009.
(3) Coppens, T. and Saulnier, F. (1998) MSF souhaite que la Cour criminelle internationale accorde aux victimes et aux témoins les garanties d’une justice indépendante et effective. MSF, Paris, Bruxelles (memo issued by MSF in June 1998 to the Rome Treaty negotiators instituting the ICC).
(4) Oxfam International Policy Compendium (2007) Note on the International Criminal Court. http://www.oxfam.ca/what-we-do/emergencies/oxfam-international-humanitarian-policy-notes/oi_hum_policy_icc.pdf, consulted on 9 April 2009.
(5) See La Rosa, A.M., (2009) ICRC and ICC: Two separate but complementary approaches to ensuring respect for international humanitarian law. Interview on ICRC website, 3 March, http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/international-criminal-court-interview-101008, consulted on 9 April 2009.
(6) Bouchet-Saulnier, F. and Dubuet F. (2007) Legal or Humanitarian Testimony? History of MSF’s Interactions with Investigations and Judicial Proceedings. Fondation MSF/Crash, Paris.
(7) For a critical introduction to liberal internationalism and its influence on US foreign policy decisions, see Smith, T. (2007) A Pact with the Devil Washington’s Bid for World Supremacy and the Betrayal of the American Promise. Routledge, New York, Oxon.
(8) See Garapon, A. (2002) Des crimes qu’on ne peut ni punir ni pardonner. Pour une justice internationale. Odile Jacob, Paris. p. 65.
(9) Amnesty International (2009) Sudan: Amnesty International calls for arrest of President al Bashir, 4 March , Press release.
(10) Human Rights Watch (2009) Q & A: International Criminal Court’s Decision on al-Bashir’s Arrest Warrant. 4 March, http://www.hrw.org/fr/news/2009/03/04/q-international-criminal-court-s-decision-al-bashir-s-arrest-warrant accessed on May 15, 2009.
(11) MSF (1998) MSF recommendations for the future ICC. Press Release, 16 June.
(12) See Garapon (2002). p. 12.
(13) Koskenniemi, M. (2002) Between Impunity and Show Trials”. Max Planck Yearbook of United Nations Law. Vol. 6. pp. 1-35.
(14) Brauman, R. and Sivan E. (1999) Eloge de la désobéissance. A propos d’un « spécialiste », Adolf Eichmann. Editions Le Pommier, Paris.
(15) Koskenniemi, M. (2002). pp. 8-9.
(16) See for instance, Grono N. (2008) The role of the international justice in preventing and resolving deadly conflict. ICG Presentation to the Oxford Transitional Justice Research Program, Oxford University, 13 October.
(17) Garapon (2002). p. 61ff.
(18) Garapon (2002). pp. 63-4.