Africa Matters is a blog that follows the news and offers analysis of African affairs. Our aim is to delve deeper into the issues of African politics and development. We don’t presume to be experts, and we don’t presume to have all the answers—we are just trying to ask the right questions.

Saturday, March 7

Criticisms of the Bashir warrant

I think even the strongest supporters of the ICC and its intervention in Sudan were a bit taken aback by the swiftness and severity of Khartoum's reaction to the arrest warrant issued this week for President Omar Hassan al-Bashir. By instantly expelling 13 of the largest aid organizations working in the country, he has put at risk the lives of millions of people who depend on the basic services these groups provide—and, some would say, the ICC itself, and especially Luis Moreno-Ocampo, the court's chief prosecutor, are partially complicit as well.

Just last week, Nicholas Kristof dismissed worries of such harsh consequences in his New York Times column. He wrote on February 25:
There has been concern that Mr. Bashir will lash out by expelling aid workers or that Sudan’s fragile north-south peace agreement will become unglued if Mr. Bashir is ousted. Those fears are overblown. Time and again, Mr. Bashir has responded to pressure and scrutiny by improving his behavior and increasing his cooperation with the United Nations and Western countries.
Well, maybe not. It's early, and I think it's still premature to draw too many conclusions about how the game has changed, but there's certainly no shortage of critiques out there of the ICC's approach, many of them worth reading.

Amanda Taub at Wronging Rights has an excellent (and, as usual, quite funny—"JEM and the Holograms," anyone?) post, questioning how this one arrest could be worth the consequences. One key point she makes is that the trial that could conceivably come of this is just the tip of the pyramid that constitutes justice; but the international community is trying to crown a structure without building its foundation.
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.
William Easterly strikes a similar note over at Aid Watch (with the help of a video clip of the ever-insightful Andrew Mwenda), tying this argument to a parallel debate on foreign aid—he asks whether the ICC indictment "really helps to make Sudan's leader accountable to outsiders," rather than to Sudanese themselves, including the victims of his abuses?

Julie Flint takes this point and runs with it at Making Sense of Darfur. She writes that this move by the ICC really runs counter to justice and violates the Rome Statute proviso that prosecutions act in the interest of victims.
If [Ocampo] wanted to indict President Bashir–a reversal, by the way, of his initial thinking–why did it have to be now? What was the hurry? UNAMID is not yet at full strength and its protection capacity is modest. The biggest NGOs in Darfur, whose mere presence has at times served the war-displaced well, are now gone–and with them the witness they were able to bear as well as the food and medicines and water they provided. What can be more unjust than further, unnecessary suffering for Darfurians?
Flint also asks the important question about why the indictment was made public?
Why Moreno Ocampo decided to name his suspects - and then to give away his game plan by announcing he might take them off planes - is best known to him. His decision to use public applications rather than sealed warrants was widely opposed with the Court itself. But listening to and calmly weighing criticism is not one of the Prosecutor’s strongest points.
And, of course, also at Making Sense of Darfur, Alex de Waal weighed in on the topic. One of the more persuasive arguments I've heard in favor of the ICC is the empirical one: the track record of previous arrest warrants for sitting leaders (see: Slobodan Milosevic and Charles Taylor) isn't actually so bad. But de Waal points out that Sudan isn't Serbia or Liberia—in fact, it's more like Uganda, where, initially, the ICC indictment brought Joseph Kony to the table... until he realized that, no matter what, it wasn't going away. And back into the bush he went. De Waal writes:
Milosevic was in the process of losing a war against NATO and Taylor was in the process of being eased out of power (with a promise of safe asylum). The one international policy towards Sudan that has really worked–the CPA–is focused on a negotiated transition. Milosevic and Taylor ran one-man dictatorships which crumbled when they were removed. Bashir is not a one-man dictatorship–on the contrary he has been overshadowed by his lieutenants for most of the last 20 years–so the idea that his replacement by one of his colleagues would represent a democratic transformation is not well-founded.
So what to make of all this? As I say above, I'm wary of being so quick to condemn the ICC, though, of course, the early signs aren't good. But I think we need to see how this plays out. Everything Bashir does is calculated. I still think it's possible he's setting up a situation where he can reinstate the NGOs, putting himself in a position to claim he's made a concession without actually giving anything up. It's tit for tat, really—his opponents added leverage with the indictment, so he's doing the same to balance things out. This actually might be a shrewd move—since the ICC warrant is neither reversible (except for the one-year stay, which seems unlikely) nor necessarily actionable, I'm not sure how much effect it has beyond symbolism; on the other hand, Bashir has hold of a very real lever with his control of the humanitarian establishment in Sudan. He can perhaps claim some sort of moral high ground by reversing the expulsions in the face of a warrant for his arrest.

On a more principled level—and Amanda Taub and Julie Flint imply a similar sentiment—I also just feel like somehow this is selling Darfurians short. It's almost ironic that, in indicting Bashir, the international community is in fact granting him rights—i.e., of due process—that most Sudanese lack. Justice is so much bigger than this trial could ever be, and it can take many different forms, as well. Why go all in now—the stakes are so high, but the pot seems so small. As Taub writes in her post, the base of the pyramid consists of social norms, basic rights and liberties, security, and judicial institutions. Why gamble it all on catching one man when there's no indication doing so will help build this pyramid, with the structures that will secure real justice for people in Darfur and throughout Sudan, now and into the future?

Oh, and also kudos to Derek, at Wicked Karibu, for the best headline on the subject: The ICC's waltz with Bashir.