This morning my knowledge of the International Criminal Court and the Bashir indictments doubled. What happened?
First, Owen Barder interviewed the Wronging Rights ladies. Does Sudanese President Bashir really need to give his permission to be arrested abroad?
Second, Alex de Waal asks a panel of lawyers whether the prosecutor and the judges are out of line. (I realize that “asks a panel of lawyers” might not be the most enticing link ever posted on this blog, but I really do recommend the post.)
The general consensus: good ICC, bad judges, worse prosecutor.
Should the ICC have indicted Bashir? My personal hunch: if you wanted to maximize publicity, minimize effectiveness of the court, and maximize suffering of innocents, then YES!
Of course, if your knowledge of something can double from a blog post and a podcast, maybe you should keep your mouth shut.
Critics of Moreno-Ocampo never fail to surprise me with supercilious dismissal, invariably without acknowledging the complexity of the issue (something academics try to teach first-year students in college). The arrest warrant has to be put in context: 50 years of impunity by leaders in Khartoum as they prosecuted the war in the South and then in Darfur with no regard to civilian life (see the excellent documentary, Cry for Madiom, on the 1998 Bahr al Ghazal famine); repeated abrogation by Khartoum regimes of various agreements (read Abel Alier’s Too Many Disagreements Dishonored); continued displacement of 2.5 million persons! (Why are these people living in camps???? Because they discovered that handouts from WFP and the simple life– “Hey, all I need is a bucket and a tarp- all that other stuff, I didn’t really need it!” NO- THEY JUSTIFIABLY FEAR FOR THEIR LIVES IF THEY RETURN); and finally, the arrest warrant is the result of a slow process of investigation by a UN Commission of Inquiry, then a referral by the Security Council (i.e. China and Russia agreed), then the preparation of an application (read it- ask yourself after reading it whether Omar al-Bashir should *not* stand trial for his responsibility for what happened), and then the consideration by the pre-trial chamber, and all the while the Security Council having the power to defer. So it wasn’t the result of some publicity-seeking whimster who willy-nilly woke up one morning and said, if I indict I’ll be famous…
Ana Majnun
I think the nuanced view (seldom articulated or addressed by the court’s defenders) would include the following:
- The ICC screwed up the investigation and the evidence for its first trial ever, and so it may end in an acquittal or a mistrial;
- this first trial is also against a very small, virtually unknown warlord–a strange thing for a court supposedly addressing the worst crimes and offenders
- The ICC’s first indictments (in Uganda) have left it looking like it is a political ally of the Ugandan government rather than an impartial court;
- The many historians, political scientists and anthropologists I know who study Uganda and have met the chief prosecutor have been (shall we say) underwhelmed by his grasp of the war and its history
- The ICC’s unwillingness or inability to do what other criminal justice systems do (enforcement, negotiation, drop charges, plea bargains, etc) has hampered the Ugandan peace process;
- In Sudan, the appearance of a politically motivated indictment is again present. No other parties, in Darfur or neighboring countries, appear to be under detailed investigation
- the evidence provided to the pre-trial chamber on Bashir was far from overwhelming, and with the indictments out, it’s not clear that more evidence can be easily gathered
- the pre-trial decision to not indict Bashir for genocide seems to have been based on factors outside international law, even when there were legitimate reasons to reject the indictment;
- it is not clear that signatory countries to the ICC statute can legally arrest Bashir so long as he is head of state–something not argued or acknowledged (to my knowledge) by the prosecutor so far;
- most ICC cases so far look politically biased — essentially Europe against Africa — in part because the Security Council can veto proposals to investigate anyone they like
- an alternative might be to have a more impartial court that investigated and indicted and tried non-sitting heads of state and non-active rebel leaders (hence ending culture of impunity) and using this threat to leverage a handful of active criminals in positions of power (e.g. Kony or bashir) into better behavior in exchange for a deal, but only for a very short window of time.
All of these issues leave the competence and appropriateness of the court and the prosecutor under question. I haven’t seen a direct response to any of these criticisms. They may exist. there may be perfectly good explanations. But the simple fact is that Ocampo is not being held accountable for some (seemingly) grievous errors.
Prosecuting Sudan: Interview with Luis Moreno-Ocampo (Feb 2009)
http://www.foreignpolicy.com/story/cms.php?story_id=4698
Well said, Chris.
You have a long list, so it looks impressive, but many of the points are minor.
- this first trial is also against a very small, virtually unknown warlord–a strange thing for a court supposedly addressing the worst crimes and offenders
*****So the court can’t do well when it goes after “non-famous” warlords, and it can’t go after “famous” heads of states… let’s see… who’s left? The court did indict Ahmed Haroun and Ali Kushayb- precisely the people I guess you think should be the ones indicted. What did al-Bashir do? Ahmed Haroun is State Minister for Humanitarian Affairs… What should a could do when a war criminal flagrantly thumbs his nose at the court by harboring another war criminal?
- The ICC’s first indictments (in Uganda) have left it looking like it is a political ally of the Ugandan government rather than an impartial court;
*****So it is “looking like” something… it will always look like something in the very messy civil conflicts where it is designed to have an impact. Remember, the court only operates when a domestic judicial system cannot carry out credible process.
- The many historians, political scientists and anthropologists I know who study Uganda and have met the chief prosecutor have been (shall we say) underwhelmed by his grasp of the war and its history
******Unlike academics, prosecutors do not need nuance, they need to win their case. The defendant can hire the political scientists and anthropologists to provide expert testimony. these are messy cases- defendants will generally claim that they are in a war, and they cannot control the battlefield etc. My Lai anyone?
- In Sudan, the appearance of a politically motivated indictment is again present. No other parties, in Darfur or neighboring countries, appear to be under detailed investigation
*****Appearance again. When one side is responsible for order of magnitude different crimes is it not reasonable that the Court seek to prosecute those, when it feels it can? Go back to your first point criticizing court for going after someone too small… your criticism seems to be “if they can’t do everything all at once they are a bad thing”
- the evidence provided to the pre-trial chamber on Bashir was far from overwhelming, and with the indictments out, it’s not clear that more evidence can be easily gathered
******I thought the evidence for war crimes and crimes against humanity (deliberate attacks on civilian targets, deliberate infliction of rape, etc.), and al-Bashir’s involvement as commander in chief, would make his defense (cannot control the battlefield) very unlikely to sway the judges. More than likely the prosecutor will convince the judges that Ahmed Haroun and others reported directly up the chain of command.
- the pre-trial decision to not indict Bashir for genocide seems to have been based on factors outside international law, even when there were legitimate reasons to reject the indictment;
****Hey, judges aren’t perfect (evidence: U.S. Supreme Court). Do we argue that U.S. Supreme Court is a bad idea when judges make apparently absurd decisions in the judgment of 2/3 of legal professionals?
- it is not clear that signatory countries to the ICC statute can legally arrest Bashir so long as he is head of state–something not argued or acknowledged (to my knowledge) by the prosecutor so far;
****So minor, ya habibi! (Evidence: rendition)
But also: “Furthermore, the Judges noted that the dispositive part of UNSC resolution 1593 expressly urges all States, whether party or not to the Rome Statute, as well as international and regional organisations to “cooperate fully†with the Court.”
- most ICC cases so far look politically biased — essentially Europe against Africa — in part because the Security Council can veto proposals to investigate anyone they like
*****Ya habibi! The deputy prosecutor is Gambian. Five of the 18 pre-trial judges are African.
So in my humble opinion the only two real substantive points are the bottom two:
- The ICC screwed up the investigation and the evidence for its first trial ever, and so it may end in an acquittal or a mistrial;
*****Ongoing Lubanga trial… we’ll see what happens. maybe indeed a bad start.
- The ICC’s unwillingness or inability to do what other criminal justice systems do (enforcement, negotiation, drop charges, plea bargains, etc) has hampered the Ugandan peace process;
*****International justice system (From Security Council to ICC to informal international norms) has been very very patient with al-Bashir. He has had ample opportunities over last ten years to bring Sudan back to ordinary politics. He almost succeeded with CPA. Then with serious threat to his power in 2003, he responded with massive retaliation against civilians. He had several chances for plea-bargaining at negotiations. Abuja, Sirte… either little tiny groups like JEM played his security cabal for a fool, or he (and they) really just doesn’t care (you decide). Once Garang was dead, al-Bashir and regime clearly saw (in my reconstruction) that eliminating Darfur would give them a 20 year lock on power.
Respectfully,
Ana Majnun
strongly recommend mamdani’s new book, Saviors and Survivors: Darfur, Politics, and the War on Terror