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The International Criminal Court and Sudan: a dangerous precedent


The charges of genocide brought by the prosecutor of the International Criminal Court (ICC) in The Hague against the president of Sudan, Omar al-Bashir, show the troubled nature of international justice and the ICC in particular. Regardless of whether the case will actually be brought before a tribunal, the fact that for the first time a sitting president is charged is enough reason to pause. The fact that it is the president of a country that has not even ratified the Rome Statute – the founding document of the ICC – is reason to gasp. It is time to start panicking about the mess that our international system is in. Where or what is the source of international legitimacy if it isn’t the sovereign territorial state? Who decides? The obvious answer is those in power at the international level. In its current form, the ICC, however well-intended, does nothing to change that. The opposite, in fact.

Whereas the debate during the coming weeks will undoubtedly focus on ethics, the horrifying situation in Sudan, and the UN’s unavoidable self-doubts and split-personality syndrome, the real issue is much more fundamental. It is about what kind of structure we want to govern our global community. Preventing and ending genocide is one of the main moral imperatives of our time. It will require serious thought and profound, systemic action in order to create the right tools and mechanisms to reach a world free of such human suffering.
By looking at what the ICC – or, at least, its prosecutor Luis Moreno Ocampo – has set in motion, the dangers and undesirable effects of this latest move seem blatantly obvious. Those who are cheering it on because of well-meant concerns about human suffering worldwide need to realize that we’re only in the first decade of an undoubtedly very long 21st Century. Those who are supporting the ICC for its neo-liberal potential of spreading western influence and power need to realize that we are probably in the last decade of occidental hegemony. Disappointingly, those who are criticizing the ICC’s latest endeavor – all hail China, Grim Reaper of occidental hegemony! – are right, whatever their underlying motivations.

The ICC was set-up in 2002 to deal exactly with the type of situations as in Darfur. Article 5 of the Rome Statute lists “the crime of genocide”, “crimes against humanity”, “war crimes”, and, last but not least, “crime of aggression”. With such items on the list, especially the latter, it is easy to understand why in May 2001 US congress passed a bill authorizing the “liberation” of Americans held in The Hague. Laura’s conjugal visits to George doing his time would be too painful to watch.
Despite the smokescreen created by misnomers such as “court” and “international law”, the ICC is simply an enforcement mechanism of an agreement by a limited group of nations (108 countries have ratified the treaty) to adhere to certain norms. However much we would like to think of it as an ultimate moral or judicial authority, it is no such thing. In international “law”, there is no ultimate authority. Only varying levels of support among members of treaties and organizations. And, without an ultimate authority, there is no true “law”, only norms and regulations.

Given the necessarily vague definitions of the Article 5 list, the lack of an ultimate and permanent authority is a fundamental flaw, enough to make one shiver about the potential consequences. Whereas we all – morally concerned and enlightened human beings as we undoubtedly are – might feel a universal imperative to intervene in Darfur, who is to say that future scenarios would be equally unequivocal? Although true moral responsibility for such crimes is typically difficult to ascertain, Bashir – who my spell-check insists is named “basher”- is an obvious candidate to explain and defend himself in front of a judge.

But how about other scenarios? Many more leaders could fall within the Article 5 categories. How about Mugabe in Zimbabwe and the ICC? Most would be pleased to see him behind bars. So how about the dictatorship in Myanmar? Again, most would be fine with taking them to The Hague. North Korea? Maybe. China? No, too powerful. Iran? Belarus? Russia? Too nuclear, but surely their corrupt, aggressive and totalitarian tendencies could be fitted into “crimes against humanity” somewhere? Corruption… hmm, Berlusconi? Aggression… the Dutch are blowing things up in southern Afghanistan. Totalitarian? Bhutan is still far from being a proper democracy.

The study of international affairs is the greyest of grey areas when it comes to issues like justice and morality. In the end, faulty mechanisms such as the ICC are likely to become simply a tool for powerful interests, rather than justice. Prosecuting Bashir, through the power of legal precedents, moves us closer to a highly pliable and interest-driven new order in world affairs. The justice imposed by the powerful on the weak is arbitrary and self-serving, rather than anything even resembling universal morality or legitimacy. Do other nations have no responsibility when it comes to Darfur? Is Bashir more responsible than China and its economic support of Khartoum? The answer is unclear, but certainly worth an investigation by the ICC prosecutor, right? How about Western passivity for all these years? Didn’t world leaders implicitly contribute to the crimes against humanity in Sudan?
The ICC’s basic premise is right, namely that we simply cannot afford to have much faith in the moral righteousness of world leadership. We need control mechanisms for its erratic behavior. In practice, unfortunately, the ICC does little to change that. Bashir is not a world-leader. Bashir, however criminal and harmful to his own population, is not a long-term problem for international affairs. The true problem is the naïve leeway that we’re giving leaders of the democratic and prosperous world, i.e. those who decide the direction and implementation of international “justice”. Rather than limiting this fallible leadership by means of powerful and permanent structures, the ICC hands them yet another tool for dubious international policy.

When Danton set up the Revolutionary Tribunal in 1793 Paris, he could have known that he might very well become one of its future victims. When, only a year later, he was indeed tried, he warned that Robespierre would follow him to the guillotine. And so it happened. They were both killed by that murderous device which for a while had seemed so useful and righteous. On the one hand, they both perhaps deserved punishment because of their involvement in the Reign of Terror. On the other, their case shows how quickly arbitrary measures can become opposites of their initial purpose; within a decade after their deaths, France had become a well-established totalitarian empire. Let us pause and learn from these echoes of the past.

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