ICC's dubious Darfur justice


Omar al-BashirThe background noise over Darfur appears to have finally reached its crescendo with the International Criminal Court issuing an arrest warrant for Sudanese President Omar al-Bashir.

Bashir has been waltzing around Sudan with impunity since 1989, promising the international community that the country 'will act as a responsible government' while overseeing the deaths of at least 300,000 people (Khartoum claims that the number is 10,000), and the displacement of approximately 2.7 million.

His actions have won him the dubious honour of becoming the first ever serving head of state indicted by the ICC. Though the panel of three judges claimed there was insufficient evidence to charge Bashir with genocide, he stands accused of two counts of war crimes and five of crimes against humanity in Darfur.

In retaliation to this affront, Bashir has expelled ten foreign aid agencies who, according to him, have undertaken 'activities that act in contradiction to all regulation and laws'.

Organisations including Oxfam, Save the Children, Care and Médecins Sans Frontières, in conjunction with the UN, currently run the world's largest humanitarian operation in Darfur providing humanitarian assistance to more than 1.5 million people. Their expulsion from the region leaves those people with nowhere to turn.

Established in 2002, the ICC has hauled before its tribunal such shady superstars as former Serb President Slobodan Milosevic (who escaped sentencing by dying mid-trial) and Bosnian Serb leader Radovan Karadzic, who remains in custody there.

Charles Taylor, the former Liberian President, has been extradited to face trial in front of a Special Court created by the UN for the violence in Sierra Leone. Jean Kambanda, the former Rwandan prime minister, was convicted of genocide by the International Criminal Tribunal in another landmark case.

Recently, 'Duch', a top Khmer Rouge leader, was tried in front of a Cambodian UN-established court. A similar set-up may soon find itself faced with the prosecution of top echelon Syrian officials over the assassination of the former Lebanese Prime Minister Rafik Hariri.

Not since Nuremburg or the Tokyo trials held at the conclusion of the Second World War have courts been given jurisdiction over individual citizens as opposed to just over states. Since the end of the Cold War there have been considerable, though largely unremarked upon, advancements made in the international legal system.

As such, this latest act of the ICC ought to initiate an international patting of backs. Or should it? The African Union has called an emergency meeting in the Ethiopian capital Addis Ababa over the arrest warrant, only a day after warning it would hurt the fragile peace process. China, which has significant economic investments in Sudan (read: oil), and Russia, both armed with UN Security Council vetoes, have indicated they will halt any UN action.

The rebels have declared it impossible to negotiate with an indicted leader. Then there is the grave question of the people of Darfur who are now left stranded due to the untimely exit of the aid agencies. What of them? Given that this is Africa, and that they are absent from our television screens at present, more will die. Thus what seems like the beginning of the end of the tragedy of Darfur risks becoming simply the end of the beginning.

Supporters of the ICC claim to stand for ethics, for what is 'right', and for justice, yet the complexities of the situation ought to give us all pause.

The decision to pursue Bashir is ultimately a political choice that involves difficult trade-offs. The ICC can only deliver justice in its most legalistic form; it is forced by its very nature to neglect the wider and more nuanced meaning of the word.

Prosecuting Bashir will not deliver justice to the people of Darfur. Absent the humanitarian aid that they depend on to survive they will be delivered into an even worse situation.

Yet turning a blind eye to Bashir's atrocities is perhaps just as irresponsible. Sudanese Humanitarian Affairs Minister Ahmed Haroun, himself wanted for war crimes, remarked that 'it is up to the international community to weigh up the damage made by [ICC prosecutor Luis Moreno-Ocampo's] application and the arrest warrant'.

The international community might have finally turned off the music in an attempt to stop Bashir's brutal waltz, but at what cost? The stakes could not be higher.

Kimberley LaytonKimberley Layton is Canberra-based freelance writer and a recent honours graduate in International Relations from the Australian National University.

Topic tags: kimberley layton, darfur, sudan, africa, Omar al-Bashir, icc



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Existing comments

In pursuit of justice could lead to worse injustice! Not that we want to play God and pursue perpetrators at all cost, but some effort at discerning possible negative consequences is probably wiser. No easy answer for human rights advocates when we consider the question: at what cost?
Deborah Ruiz Wall | 11 March 2009

Life is so often involved in a choice of two evils. What we do about the consequences is another test.
Ray O'Donoghue | 11 March 2009


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