Just as war is too serious to be left to the generals, justice may be too delicate to be handled by jurists alone. This is specially the case when jurists try to use the law as a weapon against political enemies.
We have seen an example in the case of Italian Prime Minister Silvio Berlusconi whose political opponents, unable to defeat him in elections, have been trying to send him to prison through legal procedures.
In a different context, we had another example in this week’s application by the Prosecutor of the International Criminal Court (ICC) for a warrant of arrest for Sudanese President Omar Hassan al-Bashir for genocide, crimes against humanity and war crimes committed in Darfur. This is the first time that such charges are leveled against a head of state before the ICC. The judges will now have to weigh the Prosecutor’s evidence and decide whether to issue the warrant. The process could take three to six months.
Not surprisingly, humanitarian organizations and liberal commentators have hailed the Prosecutor’s decision as an heroic act. Nevertheless, the move is open to question on at least three grounds.
To start with, the Prosecutor may be standing on shaky legal grounds.
At first glance, the Prosecutor might appear to be acting within his mandate under the Rome Statute and from the United Nations’ Security Council’s report in 2005 that referred crimes allegedly committed in Darfur to him for investigation. The Sudanese government has done all it could to frustrate that mandate. Notably, it has refused to hand over Ahmad Harun, a Cabinet minister, and Janjaweed commander Ali Khushayb, against whom the Prosecutor issued warrants in 2007.
Thus, the issue immediately at hand is the Sudanese government’s lack of cooperation with the ICC and the dispute over how Harun and Khushyab should be interrogated. The legal response in this case is a charge of contempt of court against the Khartoum authorities, not an arrest warrant against the Sudanese head of state.
The Prosecutor has built absolutely no individual case against al-Bashir. Nor is there international consensus that the tragedy in Darfur would qualify as genocide.
What the Prosecutor is trying to do is to arrest a man before securing reasonable grounds for charging him and then presumably use him to secure such grounds. Such a procedure would have no chance of success in any normal system of justice. There is no reason why it should be treated more seriously when it comes to the statutes under which the ICC was set up, statutes that the Sudanese government does not recognize. In English legal jargon, a law that is inapplicable or whose application leads to greater injustice is described as an “ass”. In that sense, the ICC Prosecutor has produced an asinine situation.
Implicating President al-Bashir personally opens a hornet’s nest of issues having to do with national sovereignty, plausible deniability and collective responsibility. Paradoxically, this broadening of the scope of the prosecution could blunt the legal edge of any case that may be brought against the Sudanese state. The Prosecutor may end up drowning the fish.
The second reason why the Prosecutor’s decision may prove counterproductive is political.
Whatever decision the Sudan takes about Darfur would still have to pass through al-Bashir. With an arrest warrant hanging over his head like the Damocles sword, his priority would be to protect himself and the integrity of his regime rather than embarking on dicey efforts to bring peace to Darfur. Marked out for arrest, he would have little incentive to help create a situation in which it would be easier to execute the warrant against him. And what would the UN and the major powers involved in the Darfur drama do? Would they continue dealing with al-Bashir as if nothing had happened? Or would they stop treating him as a legitimate interlocutor?
Trying to secure a warrant against al-Bashir may do much harm on other grounds.
It could strengthen the position of hard-line factions on all sides. The most radical elements in the opposition could decide that their best bet is to hang tough until the ICC and the “international community” pushes Bashir’s back to the wall. Hardliners within the Khartoum regime may decide that the only means of ensuring their survival is to adopt an uncompromising profile.
A fresh ascendancy of radical elements could destroy the fragile North-South peace process, already shaken by recent military clashes. It could also kill all chances of a political settlement in Darfur and prevent the effective deployment of the UN aid mission and the international peacekeeping force, responsible for keeping some 2.2 million people alive. Last but not least, the Prosecutor’s move could kill hopes of containing the conflict, provoke new tensions, and extend the war into neighboring countries notably Chad and the Central African Republic.
By trying to charge their head of state with genocide, the Prosecutor is, effectively, implicating all Sudanese, including those who oppose him, and who may well be the majority. We witnessed a case of nationalistic self-respect triggered into action a few years ago when a Spanish judge issued an arrest warrant against former Chilean President Augosto Pinochet during his visit to Britain. The move failed. But it increased Pinochet’s popularity at home. Even the Socialists who at the time formed the government in Chile, forgot their sufferings at Pinochet’s hands, and expressed outrage at their former head of state being subjected to a warrant issued by a foreign judge.
Finally, the Prosecutor’s move could harm the authority of international law, especially the ICC. There is little chance of anyone executing a putative warrant against the Sudanese President. Thus, seeking a warrant against him would have nothing but a purely symbolic effect. And one thing the law should never do is to replace justice with symbolism.
The ICC Prosecutor has made his name and may well end up as a candidate for the Nobel Peace Prize or some similar distinction. The international community, however, faces the task of cleaning up the mess he has created.
But, how to do this?
The key is in the hands of the Security Council. It should put the delay that the judges need to decide about the Prosecutor’s request to good use by initiating a dialogue with Khartoum at a higher level and focused on a set of concrete measures to protect the North-South process and to strengthen peace enforcing measures in Darfur. China and Russia should be persuaded to stop dragging their feet, to allow the full and effective deployment of the UNAMID. The European Union and the United States should do their parts by committing more troops and resources to the mission.
For reasons of expediency, the Security Council may find it difficult to reject the ICC Prosecutor’s demand. A straight rejection could shatter the prestige of the Prosecutor and force his resignation. That, in turn, could expose the ICC as nothing but a political tool of the big powers. A political compromise, however, could persuade the Prosecutor to withdraw his demand, as he is able to do under ICC statutes. But even if he does not do so, the Security Council could give the green light for the warrant but suspend its execution for 12 months. (This is allowed under Article 16 of the Rome Statutes.) The suspension could be extended every 12 months indefinitely, allowing the Security Council and the Prosecutor not to lose face without provoking a clash with the Sudanese government.
Pressure on the Sudanese government should continue. But Darfur should not become a legal football to divert attention from political, economic and military measures needed to deal with the tragedy.