Tuesday, July 21, 2009

Some questions on the arrest warrants of the ICC

Alex de Waal's blog had an interesting exchange between Christine Chung, Christian Palme, and de Waal and Julie Flint. It's a National Enquirer read for the most part, so I thought I would take the discussion back to the judicious language (and less gratuitous snark) that the blogosphere is well-known for ;-)

Alex and Julie,

In the spirit of continuing the substantive discussion, rather than the character discussion (which is tawdry, no?) I would like to ask you to re-state your objections to the indictment (arrest warrant) against al-Bashir. You say, "We do not oppose ICC justice in Darfur — only for the president, now." It would be nice also to leave aside in this discussion the issue of the genocide charges, since the consequences in terms of legal reasoning and precedent of having al-Bashir be tried for genocide for what happened in Darfur is I think not essential to what, as you have stated many times, are the quite significant enough crimes of war and crimes against humanity.

My understanding at the time (last March) was that you thought it would completely derail the peace process and possibly lead to enormous human suffering if al-Bashir "angrily" retaliated at the affront to his honor (I think that is how you characterized it). It seems neither has happened to the degree predicted. If anything, the peace processes (CPA and Darfur) are on better tracks than they were before the arrest warrant (we shall see tomorrow with Abyei), and even with the charade of expulsion and readmittance and non-readmittance of aid groups, the increase in suffering, while evidently quite real to those who suffer, has neither affected policymakers and media (chastened perhaps by the joint Mamdani-de Waal offensive) nor IDP community organizers (no large movements or protests seem to have emerged).

Since your objections to the arrest warrant were largely consequentialist, and those consequences have not emerged, have you rethought your position? I would be the first to say that the arrest warrant complicates the various processes, but a "non-arrest warrant" situation (held in reserve like a secret hammer?) would also have complicated things. So I am not sure there is much basis to make judgments on the action.

My own position is that the ICC as a quasi-independent judiciary once established has a logic that is certainly quirky, but not self-evidently negative, and hard to say how it could be improved upon given what the ICC actually is (a court established by a treaty, with lots of rules spelled out in the treaty), and the division among African countries (and I'll stand with Botswana any day on this, rather than Zimbabwe and Libya and all the others!) over ICC suggests that many people value the steps being taken towards an end to impunity, as complements to local/national struggles for establishment of robust, genuine, rule of law/human rights/civil freedoms etc.

I am not sure that there is any basis to have a great objection to the arrest warrant against al-Bashir "now". Sure one can object, but when objecting one should perhaps be clear that one is objecting because of a "gut" feeling rather than because one's status as an expert means one has some secret knowledge or insight that others cannot access, and so one's objection should have more standing than other's "embrace" of the arrest warrant "now".

Lastly, I take it that you think the arrest warrants against Ahmed Haroun and Ali Kushayb were good actions (otherwise do you mean something else when you say you "do not oppose ICC justice in Darfur"). When people ask you, "Why aren't they in jail?" I presume you give the reasonable person's explanation of the limits of the ICC, the power of the Khartoum regime to protect its own, the low likelihood of outside intervention, and hence the likelihood of delay, perhaps until after 2011... and the same reasoning applies to al-Bashir, no?


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