JUSTICE AND peace, morality and realism are counterposed in the International Criminal Court’s decision to indict Sudan’s president Omar al-Bashir on charges of war crimes, crimes against humanity, murder and forcible displacement of peoples in the Darfur crisis. His expulsion of 10 humanitarian aid organisations was attacked yesterday by many who welcome the indictment as a historic application of international law, the first against a sitting president. Their departure will leave 2.2 million refugees from the conflict at risk of hunger and disease and liable to murderous attack.
The key question now is whether their safety is better protected by pressing the indictment home or using it to exert pressure on Sudan to change its policies. This long-running debate brings together the creation of the world’s first permanent war crimes court and the issue of how Sudan can be forced to make that change. The court is now established and functioning with the support of 108 United Nations member states. It is an independent institution, whose chief prosecutor Luis Moreno-Campo advised last year that this indictment should be made. Its judges have now agreed with him, although they found there is not enough evidence to press home his charges of genocide.
Their decision to prosecute is, however, still subject to unanimous overrule by the UN Security Council. France, Russia, China and the United Kingdom have indicated they would be willing to do that if Mr Bashir ends the war in Darfur and allows the refugees return home; the United States has so far disagreed. Any such political decision would risk undermining the court’s deterrent effect. But that its integrity should be upheld by the US, which has not joined the ICC, and possibly overruled by Russia and China, which are not part of it either, is ironic. So is the position of several international aid organisations which have not taken a stand on the court’s decision to prosecute Mr Bashir because that would jeopardise their humanitarian presence on the ground.
Such are the realities of world political power with which the emergent ethical legal order of the ICC has to contend. The court was right to issue the arrest warrant, since there is ample evidence of Mr Bashir’s culpability for the humanitarian catastrophe in Darfur. It must fulfil its mandate to prosecute instances of genocide, crimes against humanity and war crimes and it has shown sound judgment in formulating these charges. Many African and Arab states which dismiss its decisions are in reality rejecting the application of international law in these fields.
And yet the Darfur crisis is part of a wider and more complex national conflict in Sudan. If justice and peace are to harmonise there, all concerned should intensify pressure to prevent the north-south war reopening, for presidential elections to be held later this year and that a Darfur settlement should be pursued. The alternative would be deeply destabilising for this whole region of Africa, including neighbouring Chad where Irish troops are helping to protect another 250,000 refugees.