Diabolic Digest - The ICC and Darfur

The ICC and Darfur

By Tom Kenis

The ICC indictment of Sudan’s leadership merits a balanced appraisal.

September 2008

In July 2008, the International Criminal Court submitted, upon the request of the United Nations Security Council, charges of genocide, crimes against humanity, and war crimes in Darfur against Sudanese President Omar al-Bashir, having already done so for Sudanese Humanitarian Affairs Minister Ahmed Muhammad Harun and a local militia leader. None have so far been brought into custody, nor is this likely to happen in the near or even remote future.

“Politically motivated,” cried the Sudanese government. “Double standards, and neo-colonial bullying,” charged African, Arab and many European commentators. The tacit welcoming of the ruling by America, itself not a signatory and fierce opponent of the ICC, surprised few, given Sudan’s oil-laden geology. This, in turn, explains the eerily quiet wind blowing from China, which meets close to seven percent of its oil imports from the regime in Khartoum. (Credible) conspiracy theories aside, many analysts fear a Sudanese backlash, a hardening of positions, undermining a tenuous peace process, and turning out more harmful in the end to the very people the court ruling is supposed to rush to the aid of.

All of the above is true. The ICC, set up in 2002, has picked out small fry, a sitting leader of an Arab state at that, the adverse connotations of which have not gone unnoticed in the region. In many ways, the ICC merely ups the ante, shielding behind the cloak of internationalism self-interested policies and the chess game of jostling powers that weaker states have historically been victims of and at best spectators to.

And yet we cannot dismiss the notion that the voices raised against the ruling, and hence in defence of a government that at best utterly fails to act in defence of its own citizens, with horrible consequences, are all but devoid of ulterior motives. The court’s ruling is indeed a heavily politicised one, but so would a now hypothetical decision to the contrary. At one extreme, currying favour with the regime in Sudan inculpates one to the charge of wishing to secure access to the nation’s natural resources, while proponents of the ruling are accused of wishing a regime change for the sake of gaining a toehold to those same resources. Concurrently, some advocates of the court’s decision aspire to divert attention from their own misdeeds in the human rights arena, while detractors fear the legal dire straits such a precedent might put them in. Worse infringements occur in other places, so why intervene here? Indeed, arguments and ammunition are easily found in support of either position.

To those with no material stake in the imbroglio, the question then boils down to one of inclination, optimistic or pessimistic, as to the ability of the mechanisms hitherto employed to alleviate and ultimately solve a question of extreme human suffering. Do the actions of the ICC represent something new, or should such an instrument be seen as merely the sum of its constituent parts, a continuation of old policies, lorded over by self-interested nation states? Can the ICC transcend the balance of powers? Is the ICC, in plain English, capable of saving lives? The wider question should, but perhaps given the inchoate state of the institution, cannot easily be disentangled from the concrete case of Darfur before it.

International bodies are only as effective as their participating countries allow them to become. A prime example is arguably the United Nations, once paralysed by the Cold War stalemate, somewhat invigorated since, but stilly hamstrung by its veto-wielders’ reluctance to reform and adapt to changing international relations. Perhaps the ICC, an organisation that is legally speaking not part of the UN, can play a reinforcing, complementary role, hand-in-glove with the trend of expanding international laws. Whether the challenge of justice-over-the-weak v justice-for-all can be overcome, only time will tell.

The shifting of the balance towards universal success v a quick demise of the ICC will take place in the penumbra of smaller nations, between ardent supporters and stern detractors. Those countries seeking an advantage in opposing the court now, might one day find themselves in need of more robust international policing. The inverse, one should add, will arise just as easily. The clear choice for governments here and now is between short-term self-interest and its long-term variant. The difference is significant. Today, two very passionate foes of expanded international jurisprudence, Israel and the United States, already find themselves applauding the court’s ruling on Darfur. A verdict according to double standards will only serve to accentuate those double standards and increase the pressure to address other, more complex, even more intractable conflicts. Alas, small fry first.

The ruling appears not yet to have unleashed the feared deterioration on the ground, despite one senior Sudanese official reacting furiously, threatening to turn Darfur into a graveyard. On the contrary, the initial response of the Sudanese government has been one of increased responsiveness, at least in tone, to international pressure. With perhaps a cynical stretch of the imagination, white faces, too, will soon pop up in the dock at The Hague. If we include the ad hoc tribunal for Yugoslavia this has already happened. Of course, all gains, especially as modest as these, can be reversed. However, one must also recognise even modest gains for what they are: timid beginnings, but beginnings nonetheless.

Tom Kenis is a Belgian NGO worker.

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