Late action hero

The first attempt to bring a sitting head of state before the ICC

The international community8217;s selective myopia has come home to roost in Sudan. Nobody in his right senses would characterise Omar Hassan Ahmad al-Bashir as anything other than criminal. Yet, the application for the warrant of his arrest made by the prosecutor at the International Criminal Court, Luiacute;s Moreno-Ocampo, has split not only the international community including the Security Council that had referred the Darfur case to Ocampo8217;s office in 2005 by Resolution 1593 but observers, analysts and experts as well.

But taking a position on the ICC prosecutor8217;s application is not easy. For one, there is its timing. For reasons analogous to the Zimbabwe impasse, an aggressive move against al-Bashir may prove distinctly and violently counter-productive. Even otherwise, Ocampo could be asked why he had to press his charges now, when the peace agreement that ended the 20-year civil war in southern Sudan looks so fragile, and given that al-Bashir has promised elections in 2009.

Secondly, Sudan8217;s head of state has been accused of genocide, crimes against humanity and war crimes. Ocampo claims that the pre-trial chamber of the ICC is being provided with irrefutable evidence. But it takes more than a Herculean effort to establish such charges. Moreover, the particular vulnerability of the prosecutor8217;s case is his emphasis on al-Bashir8217;s personal responsibility for the crimes. A recurrent word in the application is al-Bashir8217;s 8220;intent8221; to commit genocide. And Ocampo8217;s overwhelming assumption and emphasis is that al-Bashir has all through been, and continues to be, in 8220;absolute control8221; 8212; an assertion doubted by many.

Thirdly, this is the first attempt to bring a sitting head of state before the ICC. Nor has the case been brought to the ICC by the state, that is, the government of Sudan. Even threats against an oppressive leader are sometimes perceived as an affront to national dignity. The Sudanese have already begun protesting, and volubly. Sudan has defiantly sworn to obstruct Ocampo. It is not a signatory to the ICC, although the SC resolution gave the court a mandate to act in this case. Part of the prosecutor8217;s problem is the fear of infringing state sovereignty. If al-Bashir is to be brought to book despite that, we would find ourselves back at the beginning 8212; the fallout of proceeding against him.

Sanctions and interventions invariably hurt the victims first and the hardest. Victimisers devise means to circumvent the noose and hold out as long as possible. The Darfur conflict has claimed some 300,000 lives since 2003, with about 2.5 million displaced and in refugee camps. Even more lives are at threat now if the UN aid programme that keeps about 33 per cent of Darfur alive ends. The UN has already announced the precautionary withdrawal of some 200 non-essential staff from Unamid, the UN-African Union joint peacekeeping mission in Darfur. A full-fledged return to state terror, in league with the murdering, pillaging, raping Janjaweed militia, might well be imminent. Some of the Darfur rebels might be emboldened as well.

Al-Bashir heads a murderous regime. But his position is actually weak, as is his regime. The opposition is weaker and divided, but it does exist. There is, of course, the possibility of a perhaps violent coup against al-Bashir: no government likes to be headed by an international pariah for long. But banking on that is extremely risky.

It is unlikely that al-Bashir will travel to any of the 106 ICC signatory countries where he can be arrested; and invading Sudan is not an option. Thus his own government is being asked to hand him over. Similar warrants against Sudan8217;s humanitarian affairs minister, Ahmed Haroun, and the Janjaweed leader, Ali Kushayb have already been torn up in Khartoum. Is al-Bashir going to turn himself in?

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Then there is China, which wants no intervention as its oil trade and investments and possible arms trade in Sudan would be hit. Again, the AU is in a dilemma: an indictment would ask it to ensure peace in central Africa and yet execute the action against al-Bashir. What if Africa indeed sees the ICC as a bully? So, the prosecutor8217;s belated and ill-timed application increasingly looks like an exercise in rhetoric, self-defeated at the start.

The disjuncture is between a moral imperative and pragmatic circumspection. The ICC is concerned with jurisprudence, not diplomacy. However, this could yet be a blessing: Ocampo8217;s application is also a victory for the international rule of law that8217;s the obverse of the threat to sovereignty. A conviction would be a moment of great symbolic significance. There is still a three-month wait as the ICC studies the application. The only way to proceed right now is to follow the International Crisis Group8217;s advice 8212; utilise this time to assess if 8220;genuine and substantial8221; progress is being made in stopping the Darfur violence. And, if possible, increase the strength of the UN-AU mission. That is, use Ocampo8217;s charges as leverage against al-Bashir. Above all, ensure that food reaches Darfur.

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