Chris Blattman disagrees with me on the ICC indictment of Omar al-Bashir, which I think is a defensible position (and one which I would probably have held myself previously). However he links to Alex de Waal’s post All Quiet in Sudan? and suggests that Alex’ arguments may show that the ICC indictments are backfiring. I think this demonstrates a fundamental misunderstanding of what the ICC indictments are intended to achieve.
Although Luis Moreno-Ocampo may well be a loose cannon, as Chris believes, the ICC indictments have one aim and one only: to bring Omar al-Bashir to trial for his role in the conflict in Darfur. While we need to take account of the political realities, the only way that they can backfire is if they put Omar al-Bashir out of reach of criminal proceedings – or possibly if they lead to more crimes against humanity in Sudan. There’s nothing in Alex’ analysis to suggest that this is the case or that it’s likely to be the case in future.
However the points that Alex makes are all dead on – and expose the real fault lines in the international system, cracks which are nowhere near the ICC itself. For example,
The second strand of the [Sudanese] government strategy has been to seek solidarity from regional organizations including the League of Arab States, the African Union and the Organization of the Islamic Conference. By last weekend, it was clear that the regional organizations all had strong objections to the ICC’s move. Many African states, including Egypt, have been early and strong supporters of the ICC, and their lack of support for this move by the Prosecutor reassured Khartoum. The AU’s new Chairperson, Jean Ping, was particularly outspoken.
It’s often been noted that African leaders have a tendency to turn a blind eye to the excesses of their peers, but at least you can say that they’re consistent. Support for the ICC was always going to evaporate as soon as national governments realised that it wasn’t just going to go after their enemies, so none of this should come as any surprise – nor does it show that the indictments are a mistake. In terms of the remit of the ICC, exposing this is surely the opposite of backfiring – it demonstrates that those regional governments are now aware that they are not out of reach of the law.
I’ve a few incoherent thoughts on this phrase:
“[T]he ICC indictments have one aim and one only: to bring Omar al-Bashir to trial for his role in the conflict in Darfur”
The Prosecutor also has to consider how best to achieve that aim, and employs numerous Igors to assess the likely political ebbs and flows of an indictment. However solid the evidence, and ill-thought through indictment can do massive harm to these aims. Lining up the diplomatic ducks (not forgetting the protocol paperwork!) in support of the indictment seems to be another thing to get sorted before going public.
Prosecutors also have to strike a balance between presenting evidence that successfully supports a crime, and choosing sets of events which chime powerfully with affected populations. A successful verdict in a case, though just in one sense, is not necessarily one that the people feel brings justice. I’m not suggesting we pander to the Mob, but highly technical prosecutions based on evidence from the margins of the conflict can lose the public’s interest and reduce the impact of the accountability process itself. The circumscribed temporal mandates of courts like the Special Court for Sierra Leone and Extraordinary Chambers in the Courts of Cambodia present extreme challenges for Prosecutors in this respect, as key events may be excluded from the mandate.
Anyhow, we have a few magnificent examples of dodgy indictments from currenly ongoing international tribunals:
a) Special Court for Sierra Leone Prosecutor, David Crane, indicts Charles Taylor at a meeting of ECOWAS Heads of State. Oops! Nigeria grants Taylor exile, and three more years of freedom before he is turned over to the court. The move of the Taylor trial out of Sierra Leone, to the Hague, (for unstated security reasons) further reduces confidence in the Court, sparing Taylor many of the most most edifying spectacles of the justice process.
b) Yugoslavia Tribunal Prosector Carla del Ponte indicts Ramush Haradinaj et al for crimes committed against the majority population, using the “joint criminal enterprise” tack. The trial chamber doesn’t take well to it, noting in their acquittal of Haradinaj, ” The Prosecution presented little direct evidence with regard to the alleged common criminal objective.” Oops! Haradinaj goes free, discrediting the accountability process in different ways for both Serbs and Albanians. Some reckon this was the low point of the ICTY.
It’s a shame more isn’t written – outside of law journals – about the area of prosecutorial strategy, because it’s the one that attracts the most attention in the media of affected countries. Trials in foreign countries, through the bland voices of translaters, without juries, are rarely as interesting as the issue of arrest warrents by charismatic prosecutors. We tend to get fawning profiles of the Prosecutors in the Sunday colour supplements, and then their memoirs, but little discussion we can truly trust.
BBC’s Panorama unveiled evidence this week of China’s providing arms used against Darfur. This programme tries to be meticulous, as in a courtroom.
http://news.bbc.co.uk/2/hi/africa/7507392.stm
and the programme is here:
http://youtube.com/watch?v=faV2-UBxyU4