The International Criminal Court's attempt to bring Sudanese president Omar al-Bashir to justice backfires

Sudan's Day in Court, by Joseph Loconte
The International Criminal Court's attempt to bring Sudanese president Omar al-Bashir to justice backfires.
The Weekly Standard, Mar 06, 2009 12:00:00 AM

Brushing aside warnings of retaliations against vulnerable refugees, the International Criminal Court issued an arrest warrant this week for Sudanese president Omar al-Bashir for atrocities committed in Darfur. A three-judge panel charged Bashir with war crimes and crimes against humanity for playing "an essential role" in the murder, rape, torture, and displacement of thousands of civilians. Although it is important that an international body has moved against the Sudanese leader--a radical Islamist who has waged war against Christians in the south and Muslims who resist his rule in the north--the court's action is fraught with problems. Already it has exposed the moral liabilities of an international tribunal that lacks any means of enforcement.

For eight months European leaders have pushed for the arrest warrant against the Sudanese president, the first aimed at a sitting head of state. The Economist magazine called it "a pretty clear victory for international human-rights activists." Richard Dicker of Human Rights Watch said the decision "has made Omar al-Bashir a wanted man." Nicholas Kristof, columnist for the New York Times and Pulitzer-prize winner for his commentary on Sudan, saw the ruling as a "step toward accountability and deterrence." Fouad Hikmat of the International Crisis Group expected the court's action to prod the government "to engage the international community a bit more."

ICC enthusiasts should put away the champagne for now. Within minutes of the court's announcement, thousands gathered in Khartoum, the Sudanese capital, to denounce the decision. "We are telling the colonialists we are not succumbing," Bashir said. "We are not submitting. We will not kneel." Within hours, Bashir met with leaders of several humanitarian groups and ordered them to leave the country. Organizations such as Oxfam and Doctors Without Borders--which provide food and medical care for thousands of refugees in Darfur--are apparently being forced out of the region.

As aid workers explain, the Sudanese government despises international relief agencies operating in Darfur. Aid agencies have performed heroic work in keeping alive the very people Bashir and his janjaweed militias have tried to exterminate. Some groups have offered evidence of government-backed raids on refugee camps, embarrassing the regime. Equally important, the physical presence of aid workers has helped discourage attacks on civilians from government forces. "One of the humanitarian services we provide is protection through pressure," a relief worker told me. "That pressure through presence is suddenly gone, and there will be a lot of people vulnerable to attack."

Quite a lot, in fact. Since the civil war erupted in 2003, at least 300,000 people have died and about 2.7 million have been displaced. They live as internal refugees or in camps in Chad and the Central African Republic. They struggle to survive with inadequate sanitation, health care, and food. Women and young girls are often the victims of sexual assault. Humanitarian convoys already face attacks from soldiers, militias, bandits, and rebels. If relief organizations are kicked out of the area, thousands of civilian deaths could follow.

This is what political theorists mean by moral hazard: When a political decision, however just in intent, carries consequences that threaten to frustrate justice and further endanger innocent lives. Some diplomats and relief workers--let's call them moral realists--warned against the ICC's ruling for months. They predicted that Bashir would use the decision as a political rallying cry. They expected the government to expel aid organizations.

It appears that the realists were right. Utopian hopes in the irrepressible power of international edicts are colliding with stubborn facts on the ground. The court has no way to enforce its decisions, no police or military to arrest the accused. The Sudanese government has vowed to ignore the warrant. Although 108 countries are parties to the 2002 Rome Statute that established the court--the United States is not a signatory--many have little interest in apprehending Bashir if he were to set foot on their soil. African Union peacekeepers in Darfur, unable to offer much protection to refugees, have no authority to arrest the president. The international community shows no stomach for military action, such as protecting the "no fly" zones over refugee camps that are being bombed by Sudanese planes.

The upshot is that the International Criminal Court has handed the Sudanese dictator a means to strengthen his reign of terror. As an aid worker told me: "It has created an opportunity for him to pound Darfur and to punish his opponents." Even U.N. Secretary-General Ban Ki-moon, an ICC supporter, criticized the court's ruling as "a serious setback to lifesaving operations in Darfur." Critics fear that it also could disrupt the fragile peace agreement reached between the north and south in 2005.

What does this mean for the credibility of the International Criminal Court? Liberals remain obsessed with the United Nations and other international institutions as the sole repositories of moral authority. We are told that democratic governments--especially the United States, whose "international image" suffered under George W. Bush--lack the standing to challenge even the worst despots. The Washington Post's Colum Lynch summed up this attitude nicely, if unconsciously, in an interview on PBS's Newshour. He was asked whether the United States could press for Bashir's arrest: "It doesn't have the moral high ground to do that," he said, "because it's not a member of the court."

Allow the words to linger: It doesn't have the moral high ground because it's not a member of the court. Here is a presumption posing as an argument. Why should the International Criminal Court, a creature of the diplomatic delusions of European elites, represent the summit of moral wisdom on the world stage? Its judges are not subject to democratic checks and balances. It has yet to secure a successful prosecution. Even the court's supporters admit it has weak oversight provisions. Given its status as a U.N. body, the ICC risks being politicized and turned into a megaphone to excoriate U.S. foreign policy--the fate of the now discredited U.N. Human Rights Council.

There may be ways to prevent these unhappy outcomes for the ICC, but it's worth asking why there isn't an African solution to an African problem, especially the problem of genocide. This latest crisis in Sudan is also a religious crisis--a spiritual struggle within Islam. Most of the news reports this week somehow failed to mention it, but near the center of Sudan's heart of darkness is a violent strain of Islamist ideology. The conflict in Sudan is extremely complex, of course, involving a toxic mix of ethnic, tribal, racial, religious and economic motives. Rebel groups, mostly non-Arab, have felt marginalized from the nation's economic resources. Abuses against civilians have been committed by virtually all sides.

Yet there is little debate that the ideology of the Khartoum government--an Arab regime devoted to the violent imposition of Islamic law--has been a driving force behind the atrocities. It is not only the government that must be confronted, but its political theology.

It is not yet clear that the Obama administration, still finding its foreign policy footing, is prepared for this challenge. When asked at a press conference this week whether the United States would arrest Bashir if he entered the country (to attend a meeting at the United Nations, for example), State Department spokesman Gordon Duguid dodged the question. "Let's ask the lawyers to get us an answer on this so we are not speculating." So much for moral clarity. It will require better answers than that if, as the administration claims, the promotion of human rights is to be "central" to U.S. foreign policy. "I am looking for results," Secretary of State Hillary Clinton said at a State Department event last month. "I am looking for changes that actually improve the lives of the greatest number of people."

If saving and improving lives is the goal in Sudan, then the Obama administration will need to look beyond the International Criminal Court, and look quickly.

Joseph Loconte is a senior research fellow at the King's College in New York City and a frequent contributor to the THE WEEKLY STANDARD Online.