The International Criminal Court was established in 1998 to try "persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes." It is currently dealing with four situations, all African.
John Prendergast and Colin Thomas-Jensen take to the not so moral high ground in Enough's latest paper on Sudan: Opportunity in the Midst of Crisis, which is a follow-on from the campaign's July defence of the ICC's prosecution of President Bashir in The Merits of Justice (with it's astonishingly patronising subtitle: "Would more people, or less people, rob banks if there was no penalty for robbing banks?").
"disillusioning it is to see the President of Tanzania - which invaded Uganda in 1979 to halt Idi Amin's reign of terror - lobbying for an accused war criminal".
Those past redemption, according to the authors, include the entire membership of the African Union and the Arab League.
Surely they could have taken the time, as did Alex de Waal, to try to understand the African position.
Africa believes that the stability of Sudan is too important to be jeopardized by an abrupt adoption of a regime change policy, and that justice should be pursued in the context of peace. The AU and its member states are unanimous about this and, having made their position clear to the UN and its member states, will hold them responsible for the consequences should their advice not be heeded.
The Chairperson of the AU Commission, Jean Ping, expressed Africa’s disappointment with the ICC. He noted that thirty African countries had ratified the Rome Statute, expecting that the ICC would aid them in the pursuit of justice. But rather than pursuing justice around the world—including in cases such as Columbia, Sri Lanka and Iraq—the ICC was focusing only on Africa and was undermining rather than assisting African efforts to solve its problems. Most importantly, Ping said that the UN had passed the responsibility for addressing the ICC issue in Sudan to the AU. He said that he had learned that the UN Secretary General had, before the July 14 ICC announcement, the opportunity to block the indictment but had said that the Court was wholly independent and it was none of his business.
AU leaders said that Sudan should continue to pursue peace, democracy and justice irrespective of whether the arrest warrant is issued or not. They pointed out that it is Africa that suffers if things go wrong. It is African soldiers who will die if Darfur goes up in flames.
Secondly Prendergast and Thomas-Jensen manage a legal skip and a hop to argue that the indictment of Bashir is not aimed at bringing him to justice, but rather to the negotiating table.
With the ICC’s move, President Bashir and his government are finally confronting real consequences for their actions, consequences that go well beyond the harsh rhetoric and empty threats that have characterized the world’s response since 2003. This time it is different because the threat of an arrest warrant is potent enough to inform the calculations of a government that is as pragmatic as it is reprehensible.
Article 16 of the Rome Statute, the charter that established and governs the ICC, enables the Security Council to suspend an ICC investigation on a one-year renewable basis—if such a move is deemed in the interest of peace. The Sudanese government’s preoccupation with the ICC charges indicates that Bashir and his inner circle view international justice as a serious threat, and the actions of Chief Prosecutor Luis Moreno Ocampo have given Bashir a vested interest in reaching a peace deal in Darfur, possibly for the first time since the crisis began.
When World War II broke out, the international order could be divided into two unequal parts: one privileged, the other subjugated; one a system of sovereign states in the Western Hemisphere, the other a colonial system in most of Africa, Asia and the Middle East.
Postwar decolonization recognized former colonies as states, thereby expanding state sovereignty as a global principle of relations between states. The end of the cold war has led to another basic shift, heralding an international humanitarian order that promises to hold state sovereignty accountable to an international human rights standard. Many believe that we are in the throes of a systemic transition in international relations.
The standard of responsibility is no longer international law; it has shifted, fatefully, from law to rights. As the Bush Administration made patently clear at the time of the invasion of Iraq, humanitarian intervention does not need to abide by the law. Indeed, its defining characteristic is that it is beyond the law. It is this feature that makes humanitarian intervention the twin of the "war on terror."
This new humanitarian order, officially adopted at the UN's 2005 World Summit, claims responsibility for the protection of vulnerable populations. That responsibility is said to belong to "the international community," to be exercised in practice by the UN, and in particular by the Security Council, whose permanent members are the great powers. This new order is sanctioned in a language that departs markedly from the older language of law and citizenship. It describes as "human" the populations to be protected and as "humanitarian" the crisis they suffer from, the intervention that promises to rescue them and the agencies that seek to carry out intervention. Whereas the language of sovereignty is profoundly political, that of humanitarian intervention is profoundly apolitical, and sometimes even antipolitical. Looked at closely and critically, what we are witnessing is not a global but a partial transition. The transition from the old system of sovereignty to a new humanitarian order is confined to those states defined as "failed" or "rogue" states. The result is once again a bifurcated system, whereby state sovereignty obtains in large parts of the world but is suspended in more and more countries in Africa and the Middle East.
He argues that there is an alternative to big power intervention: "Survivor's Justice" rather than victor's justice.
If peace and justice are to be complementary rather than conflicting objectives, we must distinguish victors' justice from survivors' justice: if one insists on distinguishing right from wrong, the other seeks to reconcile different rights. In a situation where there is no winner and thus no possibility of victors' justice, survivors' justice may indeed be the only form of justice possible.
If Nuremberg is the paradigm for victors' justice, South Africa's postapartheid transition is the paradigm for survivors' justice. The end of apartheid was driven by a key principle: forgive but do not forget. The first part of the compact was that the new power will forgive all past transgressions so long as they are publicly acknowledged as wrongs. There will be no prosecutions. The second was that there will be no forgetting and that henceforth rules of conduct must change, thereby ensuring a transition to a postapartheid order. It was South Africa's good fortune that its transition was in the main internally driven.
South Africa is not a solitary example but a prototype for conflicts raging across Africa about the shape of postcolonial political communities and the definition of membership in them. The agreement that ended the South Sudan war combined impunity for all participants with political reform. The same was true of the settlement ending Mozambique's civil war. Had the ICC been involved in these conflicts in the way it is now in Darfur, it is doubtful there would be peace in either place.
