The Application for an ICC Warrant to Arrest Sudanese President Al Bashir on Charges of Genocide: An Important But Potentially Counterproductive Symbolic Gesture

By MICHAEL C. DORF


Wednesday, Jul. 16, 2008

Earlier this week, Luis Moreno-Ocampo, the Prosecutor for the International Criminal Court (ICC), issued a request for an arrest warrant for the President of the Sudan, Omar Hassan Ahmad Al Bashir. Al Bashir stands accused of committing genocide, crimes against humanity, and war crimes, in the conduct of his military and paramilitary campaign against much of the civilian population of the Darfur region of the Sudan.

Article 63 of the Statute of Rome, which governs proceedings before the ICC, requires that the accused be present for trial. Yet there is no reason to believe that Al Bashir will voluntarily appear before the ICC or, for that matter, travel outside the Sudan and risk arrest. Accordingly, barring his military overthrow, Al Bashir will likely elude justice.

Should we therefore conclude that the charges against Al Bashir are an exercise in futility? In this column, I will argue that there is symbolic value in these charges, but such symbolic value will not justify a prosecution, should it prove counterproductive.

The Charges and the Obfuscations

Westerners (and others) who have followed the news from the Sudan over the last several years only intermittently would do well to read the arrest warrant application in full, for it presents a stark picture of the situation in Darfur, and of who bears ultimate responsibility. Although the charges are technically only allegations, as the warrant application itself recites, they were the result of careful and comprehensive research, including numerous interviews with victims and witnesses.

What are these charges? In essence, that Al Bashir has directed a campaign of killing, torture, rape, and the destruction and confiscation of property, aimed principally at three ethnic groups that he regards as insufficiently supportive of his regime—the Fur, Masalit, and Zaghawa tribes.

The warrant application also describes a campaign of misdirection to obscure these crimes. In his application, Moreno-Ocampo explains how Al Bashir has sought to create three serious misimpressions about the events in Darfur. First, the Sudanese government has repeatedly asserted that the human rights violations that have occurred were the work of independent forces, the so-called “janjaweed” militia. It is true that these irregular units have committed many of the atrocities, but the warrant application explains that they have done so at the behest of the government. This is not a case of mere government indifference to suffering at the hands of private actors. As in other campaigns of ethnic violence throughout the world, state support and coordination have been behind the outrages in Darfur.

Second, the government has sought to portray its attacks against the target tribes as the unfortunate but collateral consequences of a military campaign aimed at armed insurgents. The warrant application acknowledges the right of a sovereign nation to respond to insurrection with armed force, but it also makes plain that Al Bashir has directed attacks specifically against civilians. Al Bashir’s victims were not simply in the wrong place at the wrong time. Wherever they were, Al Bashir’s forces came for them.

Third, within the Sudan and more broadly, Al Bashir has sought to magnify, and indeed to create, ethnic differences. He has stirred up racism by describing Fur, Masalit, Zaghawa, and other victim tribe members as “black” and “African,” an identity supposedly distinct from that of the “Arab” tribes perceived to be more loyal to the government. Yet victims and perpetrators alike are Arabic-speaking Muslim Africans. Al Bashir himself has dark skin, an irony reminiscent of the fact that the modest-statured, dark-haired Hitler heralded the supposed superiority of tall, fair Aryans.

After the application sets aside the misimpressions Al Bashir has sought to create, it goes on to detail the charges against him, which are stark. He has used the most brutal methods to kill, displace, and terrorize the targeted civilian populations. He has deployed gang rape as a political weapon against thousands of women, a third of them children, some as young as five years old. As the warrant application makes plain, these rapes were not simply the horrific crimes of undisciplined soldiers and militia members acting out of lust, but rather the brutal and deliberate policy of the government.

Is a Genocide Warrant Futile, or Even Counterproductive?

The ICC does not conduct trials in absentia, and even if it did, a conviction of Al Bashir while he remains in power would seem to offer little, if any, benefit to Al Bashir’s victims. Sudan does not officially prohibit private media, but government harassment of independent news outlets and the dire condition of the victims mean that many Sudanese will never even learn that their president has been accused of genocide.

Moreover, the ICC charges could well prove counterproductive. Barring “regime change” in the Sudan, the best hope for the Darfur victims is probably some negotiated settlement enforced by a robust peacekeeping force consisting of African Union or United Nations troops. A hybrid AU/UN force now operates in Darfur, but it has limited effect. The genocide charges against Al Bashir could complicate negotiations for a more robust peacekeeping force with a different mission.

There is no doubt that external pressure is needed to induce Al Bashir to negotiate seriously over protection of human rights in Darfur. Until now, he has been insulated from Western concern over Darfur by close economic ties with China, which imports Sudanese oil. With China acutely concerned about its international image as we head into the Beijing Olympics, it is possible that China will not want to be seen as too cozy with a genocidal regime, and thus will exert pressure on Al Bashir. If so, the ICC charges could lead to improvements in conditions for the Darfur victims.

Yet recent events suggest that China’s efforts, if any, will likely be cosmetic. Concerns about its international image did not prevent China from joining Russia last week in vetoing a Security Council resolution that would have imposed sanctions on Zimbabwe in response to Robert Mugabe’s brutal crackdown on political opposition there. Accordingly, it is unlikely that the ICC charges will lead to the sort of pressure on Al Bashir that would improve conditions in Darfur.

Weighing Mostly Symbolic Benefits Against Real Costs

There is, undoubtedly, symbolic value in condemning Al Bashir’s acts of genocide. The ICC warrant application expresses the well-justified moral outrage of the international community. It will also have at least some practical consequences, by permanently limiting Al Bashir’s ability to travel, and by raising the cost of doing business with his regime for companies and nations that are concerned about their public image.

These large symbolic and modest tangible benefits would certainly justify the genocide charges if one thought that Al Bashir were truly incorrigible. However, recent history has shown that Al Bashir is willing to negotiate, under the right conditions.

For most of the last half century, the Sudan has been fighting an on-again-off-again civil war between the government-controlled North and the rebel-controlled South. (This conflict is independent of the conflict and genocide in Darfur.) Peace talks between North and South culminated in a 2005 agreement granting the South substantial autonomy. Although implementation has been rocky, the very fact of the agreement shows that Al Bashir will sometimes negotiate. Given the right mix of carrots and sticks, negotiations over Darfur should be possible, and given a sufficient international commitment, a deal could be made to stick.

Thus, it would be a terrible shame if the ICC charges were to end up undermining the best hope for real improvements in the lives of Darfur victims, by leading Al Bashir to conclude that he cannot deal with the international community. That, however, is a real possibility, and as I see it, the most likely outcome of the charges.

To be clear, Mr. Moreno-Ocampo acted appropriately by seeking a warrant. In referring the case to him, the UN Security Council presumably weighed the strategic considerations against an ICC prosecution. Moreno-Ocampo understood his role to be a more limited one: to determine whether there are reasonable grounds to believe that Al Bashir committed genocide. His fair-minded examination of the evidence ineluctably led him to conclude that there are. But here, as elsewhere, the legally-warranted conclusion will not necessarily lead to the best outcome.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.



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