The ICC: Fast, cheap and out of control

Today the ICC’s Chief Prosecutor, Luis Moreno-Ocampo, filed ten charges against Omar al-Bashir, the President of Sudan: three counts of genocide, five of crimes against humanity and two of murder.

For background, The Guardian has a profile of Bashir and a helpful Q&A on the charges. ICG also has a nice summary of Sudan and Darfur.

Sudan’s government suggested the consequence would only be more violence and bloodshed. UN and humanitarian assistance is expected to relocate, disrupting essential services.

Are the indictments a bad idea? UN Dispatch says the diplomatic route has failed, and that the timing is right to get tough. Human rights advocates seem to share this view.

Jonathan Steele at The Guardian thinks otherwise.

Who would benefit from this? Almost no one. The conflict in Darfur is too complex and the attempts to resolve it are too delicate for so one-sided and blunt an approach. The two previous cases where incumbent presidents were indicted by international courts (though not the ICC) were very different from Sudan. The Yugoslav president, Slobodan Milosevic, was under military attack from Nato. Negotiations had been cut off. Ultimately, they were renewed but only with the good offices of the Russians who had shown no enthusiasm for the Hague tribunal’s indictment. Charles Taylor, the Liberian president, was indicted by a special hybrid court for his activities across the border in Sierra Leone and at a time when the two countries were virtually at war.

…The situation on the ground is dire. Hijackings of aid vehicles and food, mainly done by rebel groups, are increasing, with the number of incidents for the first six months of 2008 already equal to the total for the whole of last year. The aid agencies have to work with the consent of the government. Short of a hostile invasion designed to topple the regime in Khartoum – a decision that would be foolish and sure to make the situation even worse – there is no other choice for them but to deal with Bashir and his people. As for the chance of finding a political solution to the Darfur crisis, the AU and UN are conducting fitful talks with Darfur’s rebels in the hope of getting them to resume negotiations with the government. How could the mediators expect to persuade the rebels to be reasonable if the other side’s president has been charged with war crimes?

Nor is Darfur the only seat of tension in Sudan. The peace deal between north and south, which ended a conflict that went on longer than Darfur’s, is still fragile. What would happen to the coalition government that currently runs Sudan in preparation for a referendum on the south’s potential secession?

My sympathies are with Steele. There’s a temptation to say enough is enough, screw the bastard, and arrest away. But the indictments are a blunt instrument wielded by a narrowly focused and unelected body, the ICC, fighting for its existence and relevance (and trying to make up for a number of bungles). I support the idea of the ICC, but I’m worried that this risky decision was made without consideration for the big picture, including peace in the region.

The ICC’s Ocampo has a reputation as a loose cannon and a publicity hound, and is said to have an eye on the Argentine presidency. This reputation accords with my impressions of the ICC’s work in northern Uganda–a rash, risky, poorly informed and planned move that nearly backfired.

Is Ocampo acting rashly and alone again? I hope not. I hope that something as serious as an indictment of a sitting President would be part of a high level (probably secretive) discussion among world leaders and the UN. I hope this most of all when we are speaking of a nation with extensive UN operations, several peace efforts, several brewing wars, and an African Union peacekeeping mission (and thousands of foreign humanitarian workers) in country.

I’ve blogged before what I know of Ocampo and the ICC’s previous bungles. Based on that, I fear the worst.

But ICG released a statement this morning that nicely balances this risk and opportunity:

The best way through this dilemma may be for the UN Security Council to take advantage of the likely two to three month window before the judges’ decision on the arrest warrant, to assess whether genuine and substantial progress is in fact being made in stopping the continuing violence for which the governing regime bears responsibility, engaging in genuine peace negotiations in Darfur, expediting UNAMID deployment and advancing the CPA. If it believes such progress is being made, and that the interests of peace justify this course being taken, the Security Council could – even if the Prosecutor and the ICC wanted to proceed – exercise its power under Article 16 of the Rome Statute to suspend any prosecutions, for an initial twelve months but with such suspension able to be renewed indefinitely.

This strikes me as the most reasonable path forward for the moment. I’m thankful there’s a channel to rein in Ocampo if need be.