Europe should support the ICC over Darfur

By Anthony Dworkin - 14 Jul 08

This comment was published in ABC (Spain) on 16 July 2008.

By naming Sudan's president as a suspect for genocide over Darfur, the prosecutor of the International Criminal Court has taken his most dramatic step since the Court came into being six years ago. The move has caused alarm among diplomats and aid workers, who worry that it may complicate efforts to aid civilians in Darfur and end the conflict there. But it would be a mistake to look for a short-term political fix that could do serious harm to the wider cause of international justice. European countries, which supported the creation of the International Criminal Court and its involvement in Sudan, should let the judicial process take its course.

The European Union was influential in the establishment of the Court as an expression of its strong interest in promoting accountability for the worst international crimes. In 2005, Britain and France led efforts to pass a resolution at the United Nations Security Council that gave the Court jurisdiction over war crimes in Darfur. Because Sudan is not a party to the Court, it would not otherwise have been able to look into atrocities committed there. The British ambassador to the UN said at the time that holding war criminals accountable would contribute to both peace and justice.

Now there is growing concern that the interests of peace and justice may conflict. The cooperation of Sudan's government is essential for the deployment of peacekeepers and the delivery of humanitarian aid. Since regime change in Sudan is not in prospect, no peace agreement in Darfur can be imagined without President Bashir's consent. If the International Criminal Court's judges agree to the prosecutor's request for an arrest warrant (a decision they will not make before September), it is hard to see how European officials can continue to deal with the Sudanese leader.

But the consequences of the charges against Bashir are unpredictable. There have been earlier cases where dire warnings about the consequences of charging heads of state with war crimes have proved unfounded. The Yugoslav war crimes tribunal announced charges against Slobodan Milosevic during the war over Kosovo, and he accepted NATO's ceasefire terms only a few days later.

Moreover, in the case of Sudan, there may be ways of managing the impact. If the Court issues an arrest warrant, it would only be binding on states that are members-so countries like the United States and China, which are not party to the Court, could continue to negotiate with the Sudanese regime. In the meantime, it is essential that all countries involved in the aid effort in Sudan emphasize that the Court is an independent body that follows its own procedures. Diplomatic statements that seem to rebuke the prosecutor for his action would undermine this message and could give legitimacy to any Sudanese retaliation.

The Security Council has the power to suspend any case before the Court for a year at a time, and there have been suggestions that it should do so now. But it would be devastating for the credibility of the ICC if the Council were to suspend the case at this moment, when the situation in Darfur has not greatly changed since the same body voted to allow the Court to investigate. It is more likely that Britain and France will keep the prospect of a deferral in reserve as an incentive for President Bashir to engage genuinely in peace negotiations with rebel groups.

The prosecutor's inclusion of genocide among the charges is ambitious, and might be difficult to sustain if the case eventually comes to trial. But there should be little surprise that Bashir has been named as a suspect for war crimes and crimes against humanity, given the persistent evidence that has emerged of the involvement of Sudan's military and government officials in attacks against civilians.

The movement for international justice remains a recent development in international politics, and it is hard to predict how the objectives of peace and accountability will interact in any particular case. If the indictment of President Bashir turns out to be an obstacle to a settlement in Darfur, it may make the ICC's supporters think more deeply about when they call for it to be given jurisdiction over future conflicts. But having already taken the gamble of giving the Court a role in Darfur, European countries must now resist any move that would undermine the ICC's legitimacy and set back the cause of international justice as a whole.

2 Comments

Dear Anthony,

While overall I appreciate your piece, I cannot see in your analysis the very reasons that could undermine the ?legitimacy? and ?credibility? of the ICC. Through resolution 1593, the UN has used the ICC as a means to address a threat to international peace and security. This is allowed by article 13 of the Rome?s statute, as well as chapter VII of the UN charter. Once enacted, however, the ICC is an independent body, and ?must? take into account no political consideration. If the UNSC decided to suspend the prosecution (article 16, ICC) for political reasons, no implication for the legitimacy and credibility of the ICC should be inferred. The UNSC makes its job; the ICC another.
Instead, the initiative of the ICC Prosecutor points out, and re-opens a debate on it, that a leader of a state non-member of the ICC can ultimately be prosecuted by the same Court he does not recognize formally, losing moreover his immunity ratione personae. This is an important issue of International Law, and even challenges the sense of the choice of being not a party of the Rome?s statute.
But more importantly, this highlights that a permanent member of the UNSC, which, too, is not a party of ICC, remains in a privileged position in front of law. A position that allows leaders of states like the USA, China and Russia to substantially avoid, a priori, a potential investigation and prosecution even for the worst international crimes. As to say that law applies to the weaker, but not to the stronger. A sort of discrimination that undermines seriously International Law, and has negative implications for international politics, because the weaker will seek other means to preserve his alleged rights and ultimately protect himself. The result is that IL loses power to regulate the international society, and this implies more insecurity for us. There is no political opinion in that; it?s a sort of mathematics in IR.
High quality politicians, with a sufficiently enlightened mind, would seek the way of abolishing these unnecessary privileged positions. This would destroy any argumentation for international criminals, as well as grant us a fairer and more sustainable security based on law.

Alan Vincenzo Gendusa | Milan, Italy | 15 Jul 08, 15 Jul 08 EST

I appreciate the point that the situation of the ICC is different when a case is referred to it by the Security Council, as opposed to arising in a state that is party to the Court’s statute. The workings of the Security Council as you say inevitably reflect international politics and will therefore never deal equally with those countries that have veto power and weaker countries that do not. I would like to see all the P5 members becoming party to the ICC. In the meantime, it is better to have some justice even if it is not universal. And the principle that head of state immunity does not apply before international war crimes tribunals is well established.

If the Security Council refers a situation to the ICC, and then defers the case when nothing has changed, it will make the ICC look like a plaything of the SC and this will reduce its standing in international politics. The members of the Security Council should indicate that they take international justice seriously, and stand by their earlier resolution that it is in the interests of peace and security. Letting the case go forward would show confidence in the long-term value of international justice; deferring it in a hasty, panicky way would indicate the reverse. The members of the Security Council (esp the European ones who are most committed to the ICC and international justice) should keep their nerve.

Anthony Dworkin | 16 Jul 08, 16 Jul 08 EST

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