Longtime readers of JWN are aware that I have long been intensely skeptical about the value of “international” war-crimes courts, in general. Some of my concerns were spelled out in this Spring 2006 article in Foreign Policy: PDF; ignore the Latin and the blank space for ads. My criticisms were more fully spelled out in the concluding chapter to my 2006 book Amnesty After Atrocity? Healing Nations After Genocide and War Crimes.
And yes, just so that our many pro-Israeli readers understand my position, let me also spell out that some years ago, when my friend Chibli Mallat was working with survivors of the Sabra and Shatila massacres to have their case against Ariel Sharon prosecuted in a Belgian court, I had severe misgivings about that effort, too. I felt then, and still feel today, that the Palestinians have something more important they need from Israel’s leaders than to have the short-lived satisfaction of seeing them in a courtroom: They need Israel’s leaders to end the occupation of the Palestinian lands that has continued far too long… And some time after that, there might be an all-round reckoning regarding everyone’s criminal acts of the past.
Trying to do criminal prosecutions before a conflict is ended is, generally speaking, to put the cart before the horse. Worse than that, even just bringing the criminal case puts the defendant into a “defensive crouch” and can thereby exacerbate tensions– as it certainly has done with Sudanese Pres. Omar Hassan al-Bashir. And the whole prosecution effort diverts time, attention, and other scarce resources away from the main goal, which should be a concerted effort at sustainable conflict termination.
After all– a point seldom mentioned in the law-books– atrocities on the scale that are prosecuted in these war-crimes courts take place only in the circumstances of intense and violent inter-group conflict. So first, the conflict(s) must be ended. Otherwise, the risk of further atrocities down the pike only continues.
All of which is a slightly lengthy introduction to the warm invitation I extend to all JWN readers to go and read this excellent article about the ICC’s Darfur case, which has just been published in World Affairs Journal.
The authors, Julie Flint and Alex De Waal, are both real (and much published) experts on Darfu; and they’ve voiced some criticisms before now of the wisdom of the indictment ICC Chief Prosecutor Luis Moreno-Ocampo issued against Pres. Bashir. In this latest article, which is lengthy and extensively researched, they delve in great detail into Moreno-Ocampo’s personal record at the ICC, and before that, too.
He really does look like a terrible pick, made somewhat hastily by ICC’s governing “Assembly of States Parties”, back in 2002.
Flint and de Waal hold out some hope that– most likely with a different Chief Prosecutor– the ICC can still some day start to live up to the hopes of the many millions (or, maybe, hundreds of thousands?) of rights activists who had worked so hard for its establishment throughout the 1990s.
Personally, I wouldn’t put such a priority on the effort to re-invent the ICC as a working institution. Maybe it would be best to mothball it for a decade or two. I would put a lot more effort meanwhile into (a) building much more effective international mechanisms to end the many very damaging inter-group conflicts that still end and damage far too many lives around the world, (b) working on making the international governance system much more accountable and responsive to the needs and concerns of people and the communities in which they live, and (c) making the ‘international community’ into a much more equitable place in all respects, both economic and political.
Once we have an international system in place that is less conflict-ridden, more accountable, and more egalitarian would be a good time to think about instituting a workable “international” criminal-justice system. Keeping such an institution ticking along while the world’s governance system is still as highly inequitable and dysfunctional as it is today only keeps those problems of inequality and dysfunctionality going, or even aggravates them.
In any kind of an equitable system, George W. Bush and his hench-people would all have been top of the charge-sheet for the major crime of aggression they launched against Iraq in 2003. But prosecutions of miscreants who are leaders of rich and powerful countries are not about to happen soon. Instead of which, Moreno-Ocampo and the rest of the people at the ICC have identified a bunch of political leaders in war-torn parts of Africa against which to launch prosecutions.
As my friend Ramesh Thakur says, judicial colonialism indeed.
Particularly interesting in the Flint and De Waal piece are the details they give about Moreno-Ocampo’s numerous personal failings… And, on Darfur per se, these paragraphs, which come near the end. (Sorry I could not strip out the footnote numbers):
- There is much speculation, inside and outside the ICC, at how Moreno Ocampo arrives at his figures for death rates in Darfur. Unpublished UN monitoring figures for 2008 range from 60 to 350 violent fatalities a month, for an average of about 130. The activist group Genocide Intervention Network has a similar number, of around 150 a month.21 Moreno Ocampo has a very different figure. Speaking at a conference at Yale University on February 6, this year, the Prosecutor claimed that “as of today, 5,000 people are dying each month in Darfur,” including through “slow death” by hunger and disease.22 The OTP itself possesses no specialist epidemiologists or demographers who might generate such figures, and no one working in Darfur proposes figures even remotely close to these. While some estimates for mortality during the peak of the crisis in 2004 generated figures this high, a specialist review of mortality data undertaken by the U.S. General Accountability Office23 wrote off high-end estimates as unreliable. In the last two years, relief agencies have warned of increasing malnutrition whenever the World Food Program cuts its rations or fighting erupts, but there is no evidence of a generalized famine on the scale that the Prosecutor insists is underway. Moreno Ocampo’s arithmetic is simply fantastical.
Most of the controversy over the Bashir case has focused on the prudence of indicting a head of state in a fragile country prone to conflict. After a decade of attempts to coerce or overthrow the regime, the U.S. and European governments decided in 2001 to pursue the path of negotiation, leading in January 2005 to a peace agreement that brought a commitment to democratic elections and an end to twenty-one years of war between north and south. Slowly and painfully, with many setbacks and much resistance from the Sudan government, the key provisions of the “Comprehensive Peace Agreement” are now being implemented. There are serious problems still, especially over delineation of the north-south border, but a ceasefire has held most of the time, the northern army has withdrawn from almost all parts of the south, and a power-sharing government is functioning. Elections have been scheduled for this year and a referendum on self-determination for South Sudan for 2011. In Darfur, international efforts have focused on sustaining humanitarian access and deploying an international peacekeeping force, now approaching its mandated size of 26,000 men.
All this could be endangered by targeting Bashir directly. Many Sudanese fear that an arrest warrant could make things significantly worse, perhaps bringing about the very sorts of atrocities that the ICC is meant to deter. Moreno Ocampo disagrees. “For people in Darfur, nothing could be worse,” he told Foreign Policy magazine.24 “We need negotiations, but if Bashir is indicted, he is not the person to negotiate with.” Not even Darfur’s rebel Justice and Equality Movement (JEM) has a position as militant as this—in Doha, Qatar, on February 17, JEM signed a “Declaration of Intent” with the government for a peaceful settlement of the conflict.
During the seven months that the ICC judges deliberated, Bashir made his position perfectly clear: “We are not looking for problems, but if they come to us we will teach them a lesson they won’t forget.” Moreno Ocampo dismissed this and other warnings in his speech to the Security Council in December: “The facts are that victims of crimes committed in Darfur are 3 million African citizens, that justice will promote peace . . . Threats against victims, peacekeepers, and aid workers should be seen for what they are—criminal intent—and not rewarded with promises of impunity.”25 Although the Prosecutor is obliged to consider the interests of victims when bringing a prosecution, this section of his report ran to just four lines and failed to consider that the three million had a very obvious interest in a humanitarian operation that was keeping them alive. Minutes after the arrest warrant was issued, Khartoum began expelling relief agencies, threatening at least 70 percent of humanitarian aid to 4.7 million people.
Less attention has been paid to the substance of the arrest warrant and the fact that the Pre-Trial Chamber threw out the genocide charges, Moreno Ocampo’s principal reason for prosecuting despite the obvious risks. The judges wrote that “the Prosecution acknowledges that it (i) does not have any direct evidence in relation to Omar Al Bashir’s alleged responsibility for the crime of genocide and (ii) its allegations concerning genocide are solely based on certain inferences that, according to the Prosecution, can be drawn from the facts of the case.”26 In a remarkable humiliation for Moreno Ocampo, they proceeded (with one dissenting opinion) to dismiss those inferences.27
This will not have come as a surprise to the Prosecutor’s most informed critic, his former senior trial attorney for Darfur. “Serious disagreement remains as to whether Al Bashir and the Sudanese government intended actually to destroy, in part, the Fur, Masalit and Zaghawa peoples of Darfur,” Andrew Cayley wrote beforehand in a commentary on the genocide charges.28 “It is difficult to cry government-led genocide in one breath and then explain in the next why 2 million Darfuris have sought refuge around the principal army garrisons of their province. One million Darfuris live in Khartoum where they have never been bothered during the entire course of the war.” Rony Brauman, a founder and former president of Médecins Sans Frontières—which has teams on the ground in Darfur—heaped scorn on the Prosecutor. “Can one seriously imagine Tutsis seeking refuge in areas controlled by the Rwandan army in 1994?” he asked. “Or Jews seeking refuge with the Wehrmacht in 1943?”29