ICC Indictment of Sudan’s al-Bashir Will Test Court’s Relevancy

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The International Criminal Court (ICC) judges return on August 18th from recess with a recommendation to indict Sudan’s Omar al-Bashir on the top of their in-box. The issue has humanitarians on the ground in Darfur very worried. Says one UN staffer, “The rebels aren’t exactly angels either. It’s hard to know what incentive Bashir has now for accommodating us.”

As Darfur-watcher Alex de Waal asks, “Will this be a historic victory for human rights … or will it be a tragedy, a clash between the needs for justice and for peace, which will send Sudan into a vortex of turmoil and bloodshed?” The Court is literally out on that one.

Just two days after ICC Prosecutor Luis Moreno-Ocampo announced he was seeking the indictment, Sudan’s President traveled to Darfur to proclaim his innocence. Internally displaced Darfurians waved signs of support and roared their approval — according to the press, an orchestrated event — and President Bashir got so happy he broke out into a native dance. “We are ready to provide any assistance that will help you do your work,” the Sudanese President announced.

Ocampo says that if the ICC approves the indictment, it will be the first time in history that an independent judicial body will have concluded that there is evidence of ongoing genocide. Now that his recommendation is before the Court, the question remains — can anyone rein in perpetrators of genocide who have been caught in the act and still have their hands on the oars of state? If the ICC can, it will be the first time any international institution has done so.

Almost a decade ago, the ICC tried to get their hands on Slobodan Milosevic, but the indictment had no sticking power until Milosevic lost an election. Omar al-Bashir is no Slobodan Milosevic. He’s the head of an oil-rich nation with natural alliances to both Africans and Arabs. Not only is he an important intelligence asset to the United States but he is an energy life-line to China.

In addition, Bashir, who holds that international institutions like the ICC should not meddle in and judge the internal affairs of states, is not exactly out on a political limb. US President George Bush, while he has labeled atrocities in Darfur “genocide,” is actually in step with Bashir on the ICC. That is why neither Sudan nor the US have ratified and acceded to the Rome Statute.

The Arab League is of the same mind – especially if it means ICC involvement in Arab affairs. Says Djibouti Foreign Minister Mahmoud Ali Youssef: “The indictment sets a dangerous precedent in dealing with heads of state. It will have dangerous repercussions, not only for Sudan but also for the whole region.”The African Union and the Organization of Islamic Conference also wish the ICC would not involve itself in their dirty laundry.

Rwandan President Paul Kagame, who has gotten high points from the West for management of his country’s economy post-genocide, recently said the ICC is a new form of imperialism created by the West to control the world’s poorest countries. He is not alone in saying so.

Many in Sudan’s political class feel President Bashir has been unfairly charged. The Darfur war is young by Sudanese standards and has so far killed 300,000; the north-south dispute sputtered on and off for 50 years and killed 2 million.

The result of all this? Not much political space for the ICC to comfortably operate and the possibility that the UN Security Council might even use its power to suspend the ICC’s case. Even if the indictment survives, President Bashir shows no signs of losing political support. A 64-year-old former paratrooper, he has been famously quoted as saying, “we took power by force and whoever wants to take it back, he should use force.”

If the ICC does not succeed in bringing President Bashir to account, the institution will be weakened and lose credibility. This is the likely outcome and Mr. Bashir knows it.

Nancy Langer is the Director of External Relations at the Stimson Center.

Photo courtesy of mknobil on Flickr:

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