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.