Commentary on the indictment

My Colleague at Santa Clara Beth van Schaack and I wrote an oped that appeared in the SF Chronicle. Here is the text:

Indictment of al-Bashir: A moral and legal victory

Michael Kevane,Beth Van Schaack

Thursday, March 5, 2009

President Omar al-Bashir of Sudan has finally earned his day of infamy: On March 4, he became the first sitting head of state to be indicted for war crimes and crimes against humanity by the fledgling International Criminal Court . He joins Slobodan Milosevic of Yugoslavia, Charles Taylor of Liberia, and Jean Kambanda of Rwanda as heads of state subject to international justice for their international crimes. The fact that al-Bashir - sitting at the apex of a corrupt and brutally repressive state - is being prosecuted internationally is more important than the outcome of any particular charge in the indictment. While we believe his arrest will be easier than many think, the indictment alone represents a moral victory and an important milestone in the movement for international justice.

Notwithstanding that the United Nations Security Council orchestrated the referral of the crimes in Darfur to the ICC, diplomats are still scratching their heads over how al-Bashir can be arrested. The practicalities of his arrest will be aided by political factors that have been building against him: Al-Bashir will likely be handed over by members of his own regime. He commands no personal militia, unlike Ugandan Joseph Kony, who has evaded arrest by the ICC by hiding out in the dense tropical no-man's-land at the Congo-Uganda-Sudan border with his loyal private army.

Al-Bashir has become an extraordinary liability to the top powerbrokers of northern Sudan. Their oil revenue has been decimated by the collapse in oil prices. Their livestock and agriculture export fortunes are also collapsing as Middle Eastern demand for Sudanese exports dries up. Suddenly, reconciling with southern Sudan, the source of the oil revenue and a potential rival to the Muslim north, seems like a good strategy. Southern Vice President Salva Kiir will surely demand respect for international law as a pre-condition to continued North-South harmony. Al-Bashir's regime also remains under threat from rebel groups in Darfur, who have so far managed to resist Khartoum's counterinsurgency campaign.

These sources of instability are directly attributable to al-Bashir, and his inner circle will likely throw him to the ICC to enable them to remain in power. Indeed, there is every possibility that the same regime leaders who turn over al-Bashir will also give up his two fellow at-large indictees, Ahmed Haroun (who ironically serves as minister of state for humanitarian affairs) and Ali Kushayb (a janjaweed militia leader). In all likelihood, al-Bashir's co-defendants will turn against him as other subordinates have in past international prosecutions in exchange for some prosecutorial leniency.

The prosecutor has so far presented a very strong case against al-Bashir, and the indictment accordingly charges him with responsibility for a horrific array of crimes: murder, rape, attacking civilians, torture, and pillage. But even if ICC prosecutor Luis Moreno-Ocampo does not ultimately persuade the judges of al-Bashir's guilt on all counts in the indictment, he will have accomplished several important goals. A head of state who presided over war crimes and crimes against humanity will have been arrested and removed from power. The trial will create a set of evidentiary, legal and political precedents. After years of war and repression, Darfurian victims will finally have their day of justice.

Michael Kevane is chair of the economics department at Santa Clara University. Beth Van Schaack is a law professor at Santa Clara University.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/05/ED771697DT.DTL