Dan summarizes some of the reaction to the warrant handed down today by the ICC. (CFR has another good summary here). Essentially, the criticism of the ICC’s decision raises two arguments: (1) that charging Al-Bashir is bad for the “peace process,” and (2) that other people do bad things too, so charging Al-Bashir is tantamount to unfairly singling him out. While it is, of course, not a pre-trial chamber’s job to consider policy consequences, the Security Council will be deciding whether to defer the warrant, and it will properly be primarily concerned with the security implications. Thus, it’s worth considering both primary criticisms. After some thought, I don’t believe either holds up to scrutiny.
Let’s take the second argument first. It is, of course, legally frivolous; international law has recognized since Nuremberg that “tu quoque” – “so did you” – isn’t a defense against war crimes charges, because it has nothing to do with the innocence or guilt of the accused. It’s a red herring to distract people from the merits of the case against Al-Bashir. (Desmond Tutu wrote this week that the Court is not unduly focused on Africa, and that Africans and others should support the warrant against al-Bashir).
The first is less clear. To evaluate it, I think it’s simplest to ask “what would have to be true for the indictment to hurt the peace process?” To my mind, it would have to be true either that Al-Bashir is good for the peace process, so carrying out the warrant would damage it, or that Al-Bashir is bad for the process, but he will react to the warrant by becoming worse than he was already, so handing down the warrant will make a bad situation worse.
I. Is Al-Bashir Good for Peace?
Initially, I doubt very much that al-Bashir is good for the peace process. He has not been peaceful in words or actions the past few weeks. On his watch, 300,000 have died in Darfur, and millions have been forced to flee their homes; evidence continues to mount that attacks on civilians were government policy. Moreover, as far as the Darfur conflict goes, all he’s done for the peace process is conclude an agreement to talk about entering into a peace agreement – and even then, only with a warrant looming over him. Moreover, as John Prendergast and Omer Ismail note, peace is probably impossible with al-Bashir in office, and the indictment will cost him both domestic and international credibility.
In short, leaders who are good for the peace process probably don’t shell villages the day after a preliminary agreement is signed, order troops to rape and murder non-combatants, or expel aid workers.
II. Will Al-Bashir Respond By Setting the Process Back?
Even if al-Bashir is going to continue cracking down in response to the warrant, however, I think the Prosecutor may reasonably have concluded the warrant is best for peace long-term. First, it will inevitably weaken al-Bashir’s position internationally, which is why he’s trying to show strength by cracking down right now. Second, it sends the useful message that the Rome Statute means what it says and rationae personae immunity for heads of state is over, at least in front of the ICC. If al-Bashir is actually prosecuted, that will serve as a meaningful deterrent to similar leaders in the future.
Moreover, as Nick Grono notes, the warrant can itself be used as a negotiating tool. The United Nations Security Council may defer any ICC warrant for up to one year; if al-Bashir wants a deferral, the Security Council can demand concrete progress towards peace before granting one.
While none of this is certain, and the international community will need to show immediate resolve if al-Bashir’s crackdown continues, in my view there’s a strong argument (made by some of the world’s leading Darfur experts) that the warrant will be good for stability. Moreover, there has to be a weighty presumption in favor of bringing someone allegedly responsible for the concerted, intentional murder of hundreds of thousands of his own people to justice. Thus, unless the warrant will far more likely than not damage the peace process, we ought to applaud it.
Before concluding, I’d be remiss not to note Kevin Heller’s thoughtful argument that the warrant will undermine international resolve because the pre-trial chamber refused to approve genocide charges, and the international community will be less interested in acting as a result.
First, Heller subsequently argues that the pre-trial chamber got this wrong under the ICC’s rules. If the decision is reversed on appeal and a warrant for genocide is handed down, this argument goes away.
Second, of course, had the pre-trial chamber denied the warrant in toto – implicitly concluding al-Bashir has committed no crimes – it would have far more dramatically taken the air out of the international movement against the al-Bashir regime.
So, the warrant is probably a good thing. That doesn’t mean it will immediately be productive, as al-Bashir and the ruling National Congress Party will almost certainly continue cracking down in response. To the extent that international resolve is necessary, that’s never easy to mobilize against far-away atrocities, particularly when the world’s great powers all have urgent domestic concerns. However, the warrant is an opportunity to press al-Bashir, or remove him for someone more willing to negotiate, and it’s an opportunity that didn’t exist on Tuesday. For that reason alone, it’s something to celebrate.