You Can Make Me Write A Bashir-Arrest-Warrant Post, But You Can’t Make Me Enjoy It

I am trying to come up with something to say about the current situation in Darfur, but it turns out I’m too annoyed: my first draft of this post amounted to little more than “@)*&U#*()$&!!!!! Are you KIDDING ME????? )@*($)%&)%>>>>>>&*#^%*#&%^>.” You readers deserve better, but in the absence of other options, I think I’m just going to go for it anyway.

I would love to support every possible international criminal prosecution, because if there were more of them, that would increase my chances of getting a very interesting job working on one. International criminal law is really, really fascinating. It brings up all kinds of tricky legal issues to do with things like retroactivity and customary international law and immunity for heads of state; the facts of the cases are nearly always fascinating; and they offer nearly unprecedented opportunities for smugness. I am a total law geek, am obsessed with modern conflict, and there’s nothing I love more than a good smugging, so the thought of being able to get waist-deep into an international crim case pretty much gives me the chills. Ooohhooowoohohhhhhh. Chills.

But: that does not mean that I think all of this Bashir malarkey is a good idea. Criminal prosecutions, even when done well, are not justice. They are only one small part of it. If you think of a justice system as a pyramid, then social norms would be the base; the next layer would be basic rights to liberty and property; followed by basic security; then civil court protections; and then police investigation of crimes. Criminal prosecutions would be the tiny triangle at the very top, constituting only a small minority of time, resources, and importance within the system as a whole.

The ICC is only the top of the pyramid. It was designed that way, on the theory that criminal accountability is so important that it is worth having the international community skim it off the top, even in the absence of any of the other layers that usually form the foundation for it in a healthy domestic legal system. And I just think that, as a general rule, that’s a bad idea. We invariably take up international criminal prosecutions in the name of the accused’s victims, demanding justice on their behalf, but I don’t think we pay enough attention to what happens to them in the absence of the rest of the pyramid.

In the domestic legal systems that most of this blog’s readers grew up with, prosecutions don’t happen in a vacuum. There are police to call, witness protection programs to enter, civil courts from which to seek restitution, and stable (even elected! so fancy!) governments to lean on. In many cases, there are even more bells and whistles. Insurance! A free press! Due process rights!

The people of Darfur lack those protections. Instead, they have relied for years on the charity of international humanitarian organizations whose presence was contingent on the grace of Khartoum, its military, and the various rebel groups. Those organizations weren’t always able to protect them before, though they certainly made a valiant effort. They’ll be considerably less able to now that they’ve been forcibly expelled from the country.

And yes, Bashir and his allies are morally culpable for the humanitarian disaster that’s about to ensue. But that does not absolve the ICC and its supporters of responsibility for the results of their actions. The international community has intervened in a civil war that is being conducted against the civilian population. Civilians are not collateral to the battle for Darfur, they are one of its main targets. So when the international community acts against Bashir, he will retaliate against the civilians whom we are supposed to be protecting. And that isn’t a surprise, and so it isn’t something that we can reasonably refuse to take into account just because it is morally wrong.

When something like an ICC warrant comes floating down into Sudan, it’s not blind, impartial justice. It is an act of power, directed at one party to an ongoing conflict. If it takes full effect, and Bashir gets sent to the Hague, then it is a coup removing a leader from power. And while there are a lot of organizations that think that’s a good idea (The Enough Project does, to judge from this detailed report), if that’s what the international community is doing, shouldn’t we acknowledge it? “Ocampo deposes President” doesn’t have quite the same ring to it as “ICC issues arrest warrant.”

And while we’re at it, maybe we should acknowledge that he’s unlikely to be replaced by a Sudanese Mother Theresa. If Bashir goes, but his ruling NCP party keeps power, then the people who will succeed him are not exactly the nicest guys. If his allies within the party maintain power, then that would pretty much just be a shift from “face of the genocide” to “genocide puppet masters.” If the rival NCP faction succedes him, then it’s really still just a move towards “guys who are dirty as hell, but at least care a little more about whether we say nice things about them.” And, of course, there are the various rebel groups, for whom a blow against the Khartoum goverment is hardly a neutral development. (JEM and the Holograms wasted no time before issuing a statement that the arrest warrant had made it impossible to negotiate with Bashir’s government. Not exactly a positive step towards peace talks…)

In short, there is an extremely strong likelihood that the ICC warrant could do all of the following: destabilize a fragile set of not-yet-peace-talks, undermine the almost-but-not-really-implemented peace agreement, support the presidential ambitions of Bashir’s genocidal henchpersons, and leave millions of civilians vulnerable to starvation, disease, and violence. (But that’s okay, because they all agree that it’s totes worth dying of cholera for the possibility of Bashir’s arrest, right?)

All that to put one dude on trial in Europe? Really? This is worth it?

Color me skeptical.

Amanda Taub

20 Comments

  1. Love the emotion in this post. I also absolutely love reading this blog even though I tend to disagree with most of what is written. This time however, I agree 100%, so maybe I’m just finally coming around. Your legal perspective is fueling my fire of skeptism about the ICC.

    Don’t know if I’m allowed to pimp my own blog here, but I have my own thoughts on the ICC and Sudan.
    http://chriswaluk.blogspot.com/2009/03/can-icc-save-sudan.html

  2. title reminds me of a dorothy parker quip. Challenged to use the word horticulture in a sentence, she said, “you can take a whore to culture but you can’t force her to think.”

  3. I was going to compliment you on an excellent argument, but laughter over “JEM and the Holograms” eclipsed all rational thought. Excellent one.

  4. Taking a completely detached stance (one of our wonderful Western luxuries), I wonder: what is the motivation behind this arrest?

    The ICC, since its inception, has proven itself useless or worse to the international community in every large investigation (the LRA used its arrest warrants as a stalling measure; civil war in DRC shows no signs of letting up) and major players have abstained from joining (United States, China).

    The ICC is essentially financed by the West, and it’s hard to see how countries will keep pumping the money in when there are no results. The way I see it, the ICC is continuing to search for just one frickin’ high-profile success and it may not be around long enough to get another chance.

    Perhaps the ICC’s well-intentioned leaders think that a “success” in this desperate case, while detrimental to Sudan in the short term, will usher renewed worldwide confidence in the concept of “justice” that inspired the ICC in the first place.

    More likely, these are the stubborn retaliations of an organization that thinks it has nothing to lose and refuses to leave quietly.

  5. Yep, spot on. This is essentially a coup attempt, led by Moreno-Ocampo and cheered on by Save Darfur and Enough.
    It’s getting a little sickening hearing the Kristofs and the Prendergasts talk about what a great moment for justice this is and refusing to even acknowledge that Darfuris might be more interested in getting their food, water and healthcare back

  6. I keep reading people like de Waal and the folks at Wronging Rights mock the ICC arrest warrant as akin to the naivete of the college student’s Save Darfur’s movement. In the book of these folks, anyone who has a role to play should *not* play that role, but should instead evaluate the potential consequences of their actions in their role, and then they alone should weight the calculus (always utilitarian, interestingly) of moral weight and decide what to do. These critics think that the utilitarian calculus in Darfur is obvious: Darfuris will be hurt by the arrest warrant, in the millions, and the benefits are… well, they never usually say what the benefits are, leaving the impression the only benefit of the arrest warrant is smugness.

    They often point to the arrest warrant as changing the game, but never analyze how exactly it changes the game in Khartoum, and especially in relation to Khartoum and its neighbors, and Khartoum and the SPLA. Mind you, I don’t know how it changes the game, and neither do game theorists. But I do know it changes the game in complicated ways, and there is no way to make a satisfactory calculus of the longer-term implications. Does the arrest warrant now prevent al-Bashir from attacking South Sudan or Chad? Maybe. There are dozens of similar considerations to weigh. Was Moreno-Ocampo supposed to have weighed all these considerations, and then also weigh his professional obligation as a prosecutor in a court, on a case referred to him by the Security Council, and known how to decide? Do any of the critics honestly think that in an advanced moral/ethics philosophy class for graduate students we would arrive at a conclusion on this question?

    Finally, the minimal ethical seriousness of the critics is somewhat shocking. these are people whose jobs are to be thinker- their comparative advantage is in thinking. And so their ethical responsibility is to be contributing to a creative and helpful civil discourse about how to bring about a resolution to the challenges faced by the pursuit of justice (and the arrest warrant) and the continuing efforts to ensure a transition to an independent South Sudan following the referendum of 2011.

    In that spirit, let me suggest one creative, perhaps crazy, policy change for various powers. Fly to Juba, and start having honest diplomatic discussions for ways to break the deadlock. leverage the SPLA- strengthen the SPLA, invite northern opposition leaders. many French West African countries went through sudden reversals of political fortunes when France suddenly declared that they would no longer support dictators. national conferences were organized, and some dictators were suddenly peacefully deposed. Others (like Blaise Compaore in Burkina Faso) managed to survive the winds of change, but were chastened. Is now the opportunity to help make that happen in Sudan? Will al-Bashir refuse to let opposition leaders travel to Juba? Will he refuse to allow a reconciliation conference? Will he refuse to allow a Sudanese solution to the problem? Will he refuse a deal where a new government of national unity in Sudan promises to vigorously defend al-Bashir against the charges, and agrees that if found guilty even after a vigorous defense, he will be imprisoned in Khartoum according to terms set by the government of national unity?

  7. Michael: in what sense do you disagree with Amanda’s opinion? You seem to agree that the ICC arrest warrant is a deliberate step in the direction of a coup, and you ironically sidestep the potential benefits of the warrant (aside from “smugness”).

    As I see it, your opinions differ in that Amanda sees “adding another complicated wildcard factor to an already complicated, volatile situation” as inconsiderate towards millions of vulnerable Sudanese people (especially consdering the only predictable side-effects have been negative, vis, an enormous setback for international aid), while you see it as logical because there is an off chance such a coup could be peaceful and furthermore that such a peaceful coup could provide long-term benefit to vulnerable Sudanese people.

    To me, the latter point of view seems incredibly optimistic. But then, I consider myself quite ignorant of the situation in Sudan. I have read and re-read your whole “Sudan commentary” blog with an entirely open mind, yet the way I see it, Amanda’s logic is stronger than yours and is supported by actual evidence. I can believe there are two sides to the story, but I feel yours is underrepresented. What facts or ideas am I missing?

  8. Adam,
    I like the idea of using someone else’s blog to have our own discussion.

    So De Waal writes: “Sometimes there isn’t an immediate solution, especially to a crisis that is partly self-inflicted. It’s time to think for a moment.” But he offers no new thinking.

    Wronging Rights posting is mainly the kind of posting that was interesting *before* the arrest warrant- arguing why it might be a bad idea. But it offers nothing about what to do now that an arrest warrant has been issued. in fact, it goes the other direction by absurdly suggesting that an arrest warrant is like a coup d’etat by ocampo. Huh?

    WR further slants the debate by suggesting that: “If his allies within the party maintain power, then that would pretty much just be a shift from “face of the genocide” to “genocide puppet masters.”
    But this is completely wrong. if Taha and others in the regime give up al-Bashir, it means “puppet-masters” decide to undertake an entirely new strategy away from criminal treatment of civilians by Sudanese state. That’s a good thing, no?

    So I disagree quite strongly with Amanda’s (? is that the name of WR?) opinion. I think that the arrest warrant is best not judged through a utilitarian calculus. The arrest warrant does not “cause” the increased sufferings of Darfuri’s any more than issuing an arrest warrant for a mobster “causes” him to eliminate him potential rivals and witnesses. That criminals respond to justice with more criminality is no argument against a criminal justice system. it is an argument for how the pyramid of justice (to use WR’s image) functions. But to suggest that “more should have been done” on that pyramid is to willfully ignore five decades of history of Sudan.

    It is useful to see Sudan through other experiences. Moreno-Ocampo’s Argentina, for example. The same arguments against prosecuting members of the junta- it would lead to counter-coups by army entities like the carapintadas in 1987- did not stop Alfonsin from going ahead with trials. The outcome could have been horrific. We can mobilize dozens of similar examples (is that what you mean by evidence?) and what would we make of the outcome? Would we know what the counterfactual was? How to model this approach to the “evidence” of prosecutions and outcomes?

    I don’t know if I have contributed to the debate or not… part of my posting was about not having this debate, and instead moving forward in the context of the arrest warrant. What do you think should happen now (OK I agree with de Waal (whom I respect enormously)- let’s think more!) Do you think political mobilization of opposition in Sudan is the right avenue to pursue? A dead end? What role did political mobilization play in the ouster of Ferdinand Marco? is there a lesson there?

  9. Amanda,

    I love your blog (and like you, too), but I totally disagree. The warrant is hugely important, and beneficial. The folks (like Adam, sorry) who say the ICC has been “useless,” just aren’t watching the reality on the ground. Lots of examples here: the LRA has been heavily splintered and is much weaker than its been in a decade (yes, they can still kill people — they’ve been doing that for a while), Kenyan politicians are fighting over a domestic tribunal b/c of fear of ICC involvement (which would be going nowhere if there was no ICC), Bashir is now in a REAL bind for the first time since he took power (the world is finally watching), and so on…

    What I think you miss, as many others do, is that the warrant is certainly not intended only to bring Bashir to the Court. It will (and is meant to) have secondary effects: some good, and some bad. But those bad secondary effects do not happen in a vacuum. Everything Bashir does now to pressure the camps screws him down the line. It will be harder for the Arab/Pan-African coalition to stick behind him, divisions in the NCP will increase, and his options will dwindle.

    Will innocent people suffer? Yes. But, as you point out, that’s at Bashir’s hand, not the ICC’s. And, no, this is not just about dragging Bashir to the dock at the cost of people’s lives. It’s about starting to make deterrence real in the context of atrocity crimes. Kony’s deputies know this, and three of the top five left the bush to go back home. Two are dead. If Taha takes power in Sudan, he’ll know it, too. And who else is watching? How about every would-be dictator in Africa.

    And, finally, what the hell do you suggest we try to do? The only answer from the anti-warrant crowd I hear is “support the peace talks.” That’s total BS — b/c the movement there is sporadic and false. Critics of the Court in Darfur generally don’t know jack about the history of Sudanese diplomacy (de Waal does NOT fall in this category, but most lay critics do). The current regime is among the best at killing enough people just below the radar as to not upset their negotiating posture. There is no reason to believe that Bashir can be trusted: What about the CPA? Well, it hasn’t gone swimmingly, has it? And ask yourself why…. This regime responds to one thing — power — and, in an act of power politics, the Court just gave it a punch. I’d rather the Court give a punch than watch others take punches from the regime as we wring our hands.

    • Tomaten und Kapern (oder sind das etwa Oliven?) als Beilage können unseren Obatzden schon ohbrrazzd werden lassen. Grupften isst man übrigens in Österreich und nicht in Bayern. Ansonsten isst man den Obatzden wie man mag. Probier’s mal mit halb Limburger und halb Camenbert (der übrigens reif sein muss), da wachsen dir Flügerl, ich schwör’s. 😉

  10. Alex,
    I don’t think your post does justice to the complex ways the introduction of warrants affects situations – at best, the record so far is murky. With the LRA, which you cite as the strongest case yet, it was widely predicted by the Court’s advocates that the introduction of warrants would provoke the rebel group’s imminent demise.

    Evidence suggests that the warrants were a key element in Kony’s calculus to entertain a peace process (with the sole intention of seeing the warrants lifted), but it was the strong provisions for accountability included in the Final Peace Agreement (resulting from the need for a viable alternative to the Hague) that eclipsed even the slim possibility that Kony would sign and come out of the bush.

    The two indictees being killed (one by Kony’s orders, and one by the Ugandan government) had nothing to do with the warrants. And clearly, the warrants have not catalyzed any viable strategy to apprehend Kony or other indictees.

    Simply observing that the LRA conflict seems more solvable now than it did before 2005 when the warrants were released does not mean that the warrants played a positive role in that fact.

  11. Michael Kevane says:

    “The arrest warrant does not “cause” the increased sufferings of Darfuri’s any more than issuing an arrest warrant for a mobster “causes” him to eliminate him potential rivals and witnesses.”

    True. However when you issue an arrest warrant for a mobster you are usually in the position to

    1: enforce it
    2: protect witnesses

    Don’t think this is the case of Sudan…

  12. Michael,
    To answer your question, I am 50% of Wronging Rights, and the author of this particular post.
    To everyone else: the discussion is great. Keep up the good work.
    – Amanda

  13. I second what Texasinafrica said. I almost spit diet coke all over my fellow airport purgatory residents.

  14. Poff,

    Otti was killed by Kony b/c Kony was afraid be was going to defect with a large group of soldiers and/or help the Intl community arrest Kony. So, I’d say there’s a causal relationship at play.

  15. To respond to Michael Kevane – as you say, “the minimal ethical seriousness of the critics is somewhat shocking..their ethical responsibility is to be contributing to a creative and helpful civil discourse about how to bring about a resolution to the challenges faced by the pursuit of justice (and the arrest warrant) and the continuing efforts to ensure a transition to an independent South Sudan following the referendum of 2011.”

    I would argue that the greater ethical responsibility lies elsewhere, with addressing immediate harms – the utilitarian calculus, as you put it.

    You’re certainly correct that the implications of the ICC’s actions are wide-ranging – some perhaps for the better, some certainly for the worse.

    So, taking your suggestion – what if a conference in Juba takes months to reach a conclusion? What if it never reaches a conclusion at all?

    And, most important, what should we do in Darfur in the meantime, to ensure that aid reaches those most in need?

    Further, I completely agree with Psylo – the ICC’s actions aren’t equivalent to issuing an arrest warrant for a mob boss, for the exact reasons Wronging Rights describes in the post above.

  16. Humaitarian Relif wrote:
    “What if a conference in Juba takes months to reach a conclusion? What if it never reaches a conclusion at all? What should we do in Darfur in the meantime, to ensure that aid reaches those most in need?”

    Exactly. The right thing to be doing now is constructing scenarios and weighing options. It is March, the worst of the dry season. If food, water, fuel shipments cease, people will start moving. Larger congregations about El Fasher and Nyala, and movements to El Obeid and Khartoum. More than likely the relief operations will then follow them. The government will control the process more, but when there are 200,000 persons in camps outside of El Obeid, government will rather skim off relief aid than spend its own money. Is that not right? Government could make people go to Chad/South Sudan, trying to destabilize those areas. People could move to rebel controlled territory, making war even more complicated.

    CPA is law of the land during the transition period, but if NCP does not honor CPA, then the guarantors assumed an obligation to be involved in continuing negotiations. Civil society from north (and south) may then finally get a chance to reopen negotiations. Bargaining is back in full swing. CPA deal was indeed a monumental but fragile undertaking, and NCP has shown they were never really good faith partners. Yes of course the political dealings are incredibly messy and always lurking is violence. But that was part of the CPA anyway- Abyei was destroyed just 9 months ago, a full 2 years into the CPA!

    I think the way you have framed the question: “How do we ensure aid reaches those most in need” is slightly leading… “How do we reach those most in need where politically feasible.” By a most in need category, Congo had shifted to the priority some time ago. But it was not politically feasible then. If al-Bashir and regime decide they would rather kill the people in the camps than have peace, there is very little that humanitarian aid can do about that. Remember Bahr al_Ghazal in 1998
    http://www.hrw.org/legacy/reports/1999/sudan/SUDAWEB2-73.htm
    See film “Cry for Madiom”

    This is where the rhetoric of “game-changer” I don’t really agree with. For an illegitimate regime, it is never a “game”, in the sense that they strategize to stay in power without any rules (“too many disagreements dishonored”) The notion of honor gets conflated with masculinity- the only honor is strength (al-Bashir dancing – very overt display of masculinity). This is al-Bashir’s only option- the hyper masculinized nationalistic (i.e. riverain Arab nationalism) young men (very similar to Henri Conan Bedie and Laurent Gbagbo in Cote d’Ivoire).

    If al-Bashir wanted Sudan carved up with safe havens, then that is where he seems to be taking the country.

    A good question is what the AU is now prepared to do. Al-Bashir intends to wreak havoc- will AU stand for that? One of their objections to the ICC arrest warrant is precisely to avoid being placed in this condition. Many African citizens are acutely aware of Darfur and acutely cynical of the AU. Burkina Faso, for example, home of present AU mediator Djibril Bassolet is extremely sympathetic to public, and extremely sensitive to ICC type issues (because of Charles Taylor and Prince Johnson complicated linkages).

    So you got an analysis instead of constructive suggestions- sorry. economists can’t even fix rich countries, how can we be expected to offer advice for the hardest of the hard?

    But if I were an aid agency:
    1) move quickly to Chad and South Sudan and begin pre-positioning supplies.
    2) set up partnerships with new organizations so government can save face when allows aid to re-enter.
    3) think about “witness” strategies if government tries to pull a north korea- impossible given porous borders and fluid population
    4) give complete access to media in Arab World and Khartoum (there is a public image battle that started this week for the well-being of those in the camps)
    5) think about mechanisms to deliver cash directly to camp residents (might even be less inefficient than present high overhead system)
    6) provide training and “kits” for primary care clinics opened by locals in rebel areas. So staging “barefoot doctors” a la Eritrea.

    How about you- what do you suggest? Your moniker suggests some expertise.

  17. I believe that it is too soon to tell whether the ICC arrest warrant will be somehow beneficial for Darfur peace process. However, in the absence of leadership and strong action (6 years long of atrocities has not proved yet enough to act), it may be a good thing that the ICC steps in the vacuum to act and give foundation for stronger actions.
    While it is true that there may be humanitarian consequences to this decision, as many western NGOs have been asked to leave Sudan, some NGOs from Asian and Arab countries have shown interest in stepping in to help with the humanitarian relief…

  18. We seem to always contrast the current situation against some idealistic future where Darfuris are all well-fed, in newly-built schools, ruled by a multi-party democracy. But what about contrasting the current situation to the past, when murderous dictators were feted in western capitals and allowed to retire to villas on the french rivera.

    In this context, I find it hard to nitpick the underlying value of the ICC and international justice.

    When the International Criminal Court issued the warrant for in early March, it raised questions of peace vs justice, of politics vs prosecutions. Would this international pressure incite the dictator to tighten his grip on power and encourage him to repress any opposition? Since he now faces prosecution for crimes in Darfur, what’s to stop al Bashir from committing further crimes, there and elsewhere?

    One thing is for sure: without a police force, the ICC cannot arrest al-Bashir on its own. So as long as the leader doesn’t wander into a country that has signed onto the ICC, he’ll be able to hole up in Sudan safe from international prosecution – presumably for decades.

    But there is an historical precedent which shows that things can pan-out differently. When the ad-hoc tribunal for the former Yugoslavia indicted then Serbian President Slobodan Milosovic for war crimes, he withdrew from Kosovo two weeks later. Less than two years later, he was removed from power in a coup and delivered to international justice.

    While the fact that he died before his trial was completed speaks volumes about the expediency of the courts, an international warrant – at least in this case – helped precipitate action to end people’s suffering and encouraged opposition forces to rise up and depose their leader, confident that international opinion was on their side.

    getting rid of war criminal heads of state should be a priority, and the international justice approach has not, despite most people’s assertions to the contrary, proven itself to be an ineffective method.

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