Politics & Policy

A Dangerous Grandstand Play

The International Criminal Court's action against Sudan's dictator will be counterproductive -- at best.

Africa-watchers expect that on Wednesday, March 4, the International Criminal Court, a previously obscure body based in The Hague, will issue an arrest warrant for Sudan’s president, Omar al-Bashir. This will truly be an historic, if slightly bizarre, occasion. It will be the first time that a sitting head of state has been prosecuted by an international court in the modern era.

Not since the days of papal supremacy have princes been summoned — in that case to Rome — to answer charges of violating a universal law. Yet the ICC, like the Vatican, has a theoretical authority that exceeds its actual power. With a mandate to prosecute “crimes against humanity” in 120 signatory countries (the United States is not among them) and in any other state the U.N. Security Council refers to it, the ICC has a ludicrously outsized mission for its two courtrooms and handful of prosecutors to handle. It is, in any case, direly inefficient. In its seven years of existence, the ICC has spent more than $1 billion, but it has only four defendants in custody to show for it — three of them middling war criminals, not the big fish the court is meant to catch. To date, the court has returned no convictions.

Human-rights advocates are eager to up the ante and establish the ICC as a serious body. So is Luis Moreno-Ocampo, an Argentinian who serves as the court’s chief prosecutor, an ambitious man with wide discretionary powers. Phil Clark, who monitors the ICC at Oxford’s Centre for Socio-Legal Studies, believes that Moreno-Ocampo sees in President Bashir a grand target whose prosecution would establish the court as something more than a backwater in the international system. “I think this is much more a move suited to the ICC’s interest, not Sudan’s,” Clark says. “This is very much a play by the prosecutor to regain some lost legitimacy. Moreno-Ocampo’s been criticized for going after small fish, so he feels he needs a very high-profile indictment.”

There is solid evidence that Bashir has pursued ethnic warfare as a political strategy to consolidate his power throughout his 20-year rule. So let’s stipulate that Bashir deserves whatever he gets. A couple of decades ago, that would have been a sudden hail of bullets or lifelong house arrest following the coup that inevitably felled African military dictators of his ilk. Perhaps for Bashir it will be a cell — with a kitchenette, television, and computer — in the War Criminal Prison in Scheveningen, a seaside resort within The Hague’s city limits. But for the moment, even that posh imprisonment is merely wishful thinking. Alex de Waal, a Harvard professor who had written two books on Darfur long before George Clooney and Nicholas Kristof began agitating on the matter, has called the ICC move against Bashir a “coup de théâtre.” There is no obvious way that the warrant can be enforced.

It almost would be proper to call the issuance of the warrant a pointless statement, except that there will be repercussions — just not for Bashir. Thousands of humanitarian-aid workers and U.N. peacekeepers are based in Sudan, and in recent months the Sudanese government has been warning them in ominous fashion to be on the alert, saying it was impossible to predict what average Sudanese would do when their country’s and their president’s honor were maligned. A number of aid workers have been killed since tensions were heightened by July’s revelation that Moreno-Ocampo planned to pursue Bashir. Even before the announcement of the planned prosecution, two American embassy employees were murdered by unknown persons in Khartoum last January.

Obviously the ICC cannot be held responsible for those murders, but the situation the court has precipitated is simply outrageous. One part of the international community is pursuing the goal of convicting Bashir — something which, if ever achieved, will not happen for at least a decade — and in its myopia is hindering the other part of the international community, which is focused on offering aid and trying to hammer out peace talks in the immediate future.

Ironically, before Moreno-Ocampo asked the court to issue the warrant last July, Sudan had been relatively quiet. The government had been keeping its word on its treaty with southern Sudan, and had agreed to “talk about peace talks” with a number of rebel groups in Darfur. With the looming indictment, much of this good work is threatened. Announcing to the whole world a Western plot to jail Bashir for life is hardly likely to induce his cooperation in more urgent matters. Instead, the indictment will make him a more volatile, unpredictable force.

If it was not enough to endanger aid workers and peace agreements, most perversely the ICC indictment may well end up helping Bashir domestically. In recent years, he has been beset by rivals and pressured to loosen his military-based grip on power. “He has huge opposition within his own government,” Clark says, “but the one element that Bashir uses to unify the country behind him is that the ICC represents illegitimate intervention by international forces. That argument has been winning over many erstwhile opponents.”

It is not just Sudan, either, where the court has caused mutations in local politics. In Uganda, an ICC indictment first seemed a threat that could lure Joseph Kony, prophetic weirdo and commander of the marauding Lord’s Resistance Army, to the negotiating table. Indeed, it did. But once the indictment was issued, the bell could not be unrung. The ICC, dutifully playing the part of a court of law aloof from politics, was immovable on the issue, even after being asked by the Ugandan government (no friend of Kony’s) to rescind the warrant in the interest of peace. Kony left the peace talks — why lay down arms only to risk arrest and deportation? — and has since continued his depredations further afield, in northern Congo.

The problem with the ICC is not so much that it is politically motivated, as the Bush administration argued when it “unsigned” the Rome Statute establishing the court. (President Clinton had signed a draft version in 2000 in order to keep the U.S. involved in the negotiations.) Rather, it’s that the ICC is impolitic: wishing to reify itself, doggedly pursuing “justice” but playing into the hands of African rulers, inflaming situations rather than soothing them.

Human-rights advocates casually throw around the notion that the court’s prosecution of war criminals will — in the jargon of a group called Enough (“the project to end genocide and crimes against humanity”) — “catalyze multilateral efforts to bring about a solution to Sudan’s decades-long cycle of warfare.” Were there any likelihood that Western powers would depose and arrest Bashir with military force, one could view the warrant in a different light. But that is not the case. At most, the warrant will prompt a few words from Barack Obama and various European leaders; but it is not a threat that will be backed up by force in these hard times. On the ground, where it matters, the idea that such an indictment could “bring about a solution” — a solution to a “decades-long cycle of warfare,” no less — is simply preposterous.

People like Bashir are not lone riders. Their willingness to commit terrible crimes in order to seize land and establish dominance is representative of a larger community. These evil men do have constituencies, and while it may be gratifying to punish (or seek to punish) the Omar al-Bashirs of the world, this will do nothing to quell popularly supported violence in the long run. Other, like-minded leaders will emerge, as the 400-year-long history of ethnic warfare in Darfur should make clear. The violence in Sudan, Uganda, and so many other places in Africa has its roots in domestic political issues. Lasting peace must be sought on that level. It is not going to come from The Hague.

– Travis Kavulla is a journalism fellow with the Phillips Foundation and was last year a Gates Scholar in African history at Cambridge. He writes from Kenya.


Travis Kavulla is director of Energy and Environmental Policy at the R Street Institute. He is a former president of the National Association of Regulatory Utility Commissioners who held elected office as a Montana public service commissioner for eight years. Before that, he was an associate editor for National Review.