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The Long Arm of International Law Reaches for Omar al-Bashir, President of Sudan

March 5, 2009

It took a while, but the International Criminal Court (ICC) has issued an arrest warrant for Sudanese President Omar al-Bashir over the violence in Darfur. The court stopped short of charging al-Bashir with genocide, but the indictment does mention attacking civilians, pillage, murder, “extermination”, “forcible transfer”, torture and rape.

There seems to be little question that Sudanese soldiers and militiamen have done horrible things to civilians accused of supporting the various rebel groups of Darfur. The BBC has a piece on a former soldier who described being ordered to burn villages and kill and rape their inhabitants. By his own account, he fired his bullets over the heads of the intended victims and simply lay on top of at least one young girl instead of actually raping her, but not all of his colleagues were equally scrupulous.

The pertinent question is whether countries beyond Sudan have a responsibility to intervene to end the brutality and, if so, whether the ICC is an appropriate tool for the purpose. Canadian elder statesman Lloyd Axworthy says yes, and insists that Canada should “make a major diplomatic effort to affirm the ruling” of the ICC. As Axworthy sees it, the arrest warrant is not only just but highly practical, since it may stigmatise al-Bashir to the point where “other Sudanese leaders… consider ousting him from office”.

Well, maybe. It’s not surprising that Axworthy would take this line, since as Foreign Minister under Jean Chretien in the 1990s he was a leading advocate of the ICC (which finally got underway in 2002) and of humanitarian intervention in general. Axworthy seems dismissive of the possibility that al-Bashir might react to the warrant by retaliating against peacekeepers or humanitarian workers currently active in Sudan. However, the initial Sudanese response has been to snarl defiance and expel ten foreign aid agencies. As Peter Goodspeed notes in the National Post, “concerns are growing that any attempt to seize the 65-year-old president might plunge Sudan even deeper into misery and conflict”.

Personally, I’m inclined to take these “concerns” seriously. I regard Axworthy’s brand of Canadian foreign policy, which puts humanitarian principles miles ahead of Canadian interests and is quick to try to build up global governance at the expense of national sovereignty, as hopelessly utopian and ultimately dangerous.

In the short term, hardened characters like al-Bashir simply aren’t going to roll over and lick the boots of the “international community” as easily as Axworthy supposes. And in the long term… well, global governance is great when the president of the ICC is a Canadian and three of the five veto-wielding members of the UN Security Council are Canada’s close allies. But as various rising powers begin to play a larger role, the machinery of international law may well be used to impose unwelcome policies on Canada and like-minded nations, rather than to allow us to foist our own humanitarian preoccupations on places like Sudan.


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11 Comments leave one →
  1. canworldjon permalink*
    March 10, 2009 8:32 pm

    Well, let me be devil’s advocate for a moment. The ICC is not supposed to be a political agency, nor an international humanitarian policy think tank. It was established as a permanent court of law to take steps to arrest and bring to justice those who have committed genocide and crimes against humanity. So, with respect, I cannot see anyone more deserving than President al-Bashir for the horrendous crimes carried out in Darfur.

    Ok — bear with me a moment. The real problem with the ICC is not that it is issuing arrest warrants for war criminals — that’s what its supposed to do — but that it has no way to execute these warrants. The Rome Statute, which governs the ICC, forces it to rely on the state in question to execute the warrants it issues. Thus, in most cases, the Court is a helpless puppet of the very states– and state officials– it seeks to pursue. Of course, Article 87 of the Rome Statute allows the Court to refer matters to the UNSC when states refuse to cooperate, but really, UN Security Council resolutions are notoriously hard to come by.

    What the ICC really needs is its own means to carry out its arrest warrants; perhaps by some Chapter VII resolution for peacekeeping support, or otherwise. Right now, it seems the Court’s President is taking a long view of justice– he cannot execute the warrants anytime soon. But in the long term, Al-Bashir and others will face justice; just as Charles Taylor and Milosevic did. Whether this approach helps or hurts in the short term is another question, to which Mara seems to have some helpful insights.

    • March 11, 2009 6:36 am

      It seems to me there are two massive problems, one of effectiveness and the other of legitimacy. You’ve hit on the effectiveness one – namely, the ICC is going to be a bit of a paper tiger if it’s authority is limited in most cases to issuing arrest warrants that likely will never be carried out. But I still think there will be a massive legitimacy problem, given the ICC’s inevitable selectivity in which nationalities it prosecutes.

      The Chapter VII idea is an interesting one, but I’m not sure it would be very useful. First, what you’re really talking about, if it’s about going in and forcefully arresting someone (especially a current head of state), you’re not talking about “peacekeeping,” you’re talking about invasion. A lot of people are going to die. Consider further: a Chapter VII resolution would have to come from the Security Council. As you point out, it’s tough to get those resolutions. It’ll be even tougher to get a resolution authorizing the invasion of a country to carry out a warrant.

      • canworldjon permalink*
        March 12, 2009 7:17 am

        I’m not sure any Chapter VII resolution has to talk about an “invasion”. It might be something more general, just something specifying that calls on member states to take steps to execute and enforce the warrants– such as sanctions and travel restrictions on the Sudan government– you know, to arrest al-Bashir if he ever decides to travel internationally. It’s no fun being a tyrant if you cannot go places.

      • corsullivan permalink*
        March 12, 2009 11:21 am

        I think the legitimacy problem is very real. Beyond the question of selective prosecutions, the whole idea of the court reflects an interventionist, aggressively humanitarian approach to international affairs that is very popular in the West but rather less so elsewhere. China, for example, generally argues that countries should not interfere in each other’s internal affairs. It’s hard to avoid the impression that the court was established, intentionally or not, as a tool that Canada and Europe could use to impose their own vision of global justice on others.

        Even if the court were more objective and more broadly representative of the world’s nations, though, I still wouldn’t be convinced that it was a good idea. In my opinion, handing a lot of geopolitical power to judges and prosecutors whose only allegiance is to a set of broad judicial rules would simply be asking for trouble. Dealings among nations are complex and multifaceted, and in the real world justice needs to be balanced against other legitimate concerns, such as peace and stability. Introducing a powerful one-dimensional actor whose explicit mission was to pursue justice to the exclusion of all else would be positively mischievous. Situations like the one in Darfur are better handled on a diplomatic and political plane than a legalistic one.

        I suppose this perspective puts me in the position of rooting for al-Bashir, at least as far as his dispute with the ICC is concerned. I’ll sleep better at night (well, in the small and large hours of the morning, given my nocturnal habits) if he can defy the court effectively enough to derail the whole project.

  2. marakardasnelson permalink*
    March 9, 2009 8:50 am

    Hi Corsullivan,

    Thanks for your post.

    I think that the ICC indictment is one of the stupidest moves that the ICC or any international body could have made. In light of recent news that al-Bashir has kicked out nearly all humanitarian organisations–including the essential Medicines Sans Frontiers–it is strikingly clear that issuing the indictment merely gave a final and substantial reasons for al-Bashir not to work with any UN body or other international organisation, which he had already been resisting for several years. Indicting a sitting head of state that is already lawless and uncooperative is stupid and short sighted. Really: what did they expect? For him to walk off happily, hand-cuffed and subdued? In watching Zimbabwe’s Mugabe respond violently to any outside criticism, especially from the West, the ICC and it’s supporters should have clearly read the warning signs that rogue heads of failing states will react poorly to any outside slap on the wrist. What’s worst, this experiment–which was lauded by some of the international law community–has resulted in the severe depreciation of already poor living conditions throughout Sudan, and especially in the Darfur region. Much of the country was dependent on the aid of foreign NGOs, who are now largely unable to do their work.

    The poor decision-making of a few men in suits now has the potential to further inflame an already volatile situation, and offers no protection to the citizens of Sudan.

    • corsullivan permalink*
      March 10, 2009 11:34 am

      Thanks for the comment, and I couldn’t agree more. I’m actually a bit surprised by the speed and ferocity of the backlash. The latest from the BBC is that a group of gunmen ambushed some peacekeepers in Darfur, wounding four. To be fair, the identity of the gunmen is unclear at this point, and they might not be supporters of the government… but I wouldn’t exactly be surprised.

  3. March 6, 2009 5:27 am

    Francois — I agree with your ideal. The difficulty is, I’m not sure how to get there, because, as you say, those with power are using the institution to their own ends. Even beyond the U.S. case, which is the most flagrant example of this, I think we have to question what it looks like to have an organization that is led by people from North America and Europe, and exclusively prosecutes people in developing countries.

    So long as the ICC confines itself to some of the most extreme cases imaginable, and I guess al-Bashir could qualify for that (Charles Taylor certainly does), it can remain uncontroversial – but it will remain uncontroversial at the expense of not being able to expand and gain more influence. That’s my take, anyways. I wish I could offer an ingenious way around that dilemma.

    • corsullivan permalink*
      March 10, 2009 11:54 am

      I think you and Francois are absolutely right about the tendency of powerful countries to exploit institutions like the ICC for their own purposes. As I said in the original post, this might get rather unpleasant for the West as global power tilts increasingly towards other parts of the world.

      I also see a more fundamental problem, in that “universal ideals” that could perhaps provide a more legitimate basis for the ICC are not necessarily easy to identify. At least some African and Arab countries don’t seem to see any need to prosecute al-Bashir, so they presumably don’t share whatever ideals drove the ICC to push ahead with the prosecution. In my opinion, we Westerners have an unfortunate tendency to fool ourselves into thinking that our subjective, culturally contingent moral preferences are actually sacred universal truths.

  4. March 5, 2009 8:24 pm

    If countries start the use the ICC for their own purpose, then it’s simply going to become a subsidirary of the UN which in turn is a subsidiary of the US.

    I woull think the whole point of an organization such as the ICC is to abstract itself from local agendas to try to promote universal ideals or so it should be at least.

    Of course this view is naive and bigger power are going to bring their full weight to bear on it. And to begin with the biggest of all, the US has already abstracted itself from it by refusing to be submitted to its rulings if it applies to them.

  5. March 5, 2009 12:01 pm

    Kind of ironic, really, that while we demand accountability under the law for al-Bashir on this issue, our government also – as the Globe and Mail revealed today – asked him to illegally arrest and hold without charge a Canadian citizen, Abousfian Abdelrazik.

    Developed countries’ institutions don’t seem entirely consistent in their treatment of Sudan.


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