The recent indictment of Sudan’s leader, Omar al-Bashir, by the International Criminal Court (“ICC”) graphically demonstrates why the ICC is fundamentally flawed. Criticizing the ICC, of course, is not equivalent to defending Bashir for his actions in Sudan’s Darfur region. We can simply assume, and probably correctly, that Bashir is guilty of every offense the ICC has charged.
Bashir’s evil, however, does not justify the ICC’s indictment. The ICC is a potentially huge source of unaccountable power, exercising the weighty executive authority of prosecution, and the enormous judicial power of trial and sentencing, all without the slightest accountability to real people or their elected representatives. Moreover, for Americans, mixing executive and judicial powers in one self-contained institution is itself deeply troubling.
ICC advocates respond that it is responsible to the 108 governments now party to the Rome Statute establishing the ICC. But this defense actually demonstrates the ICC’s unaccountability: an international meeting of 108 governments is rarely capable of anything but platitudes, and certainly not the hard decisions required to oversee sensitive prosecutions.
Because the ICC lacks effective oversight, there is every risk it will take actions that have unforeseen effects in difficult crisis situations. In real governments, decisions can be coordinated to form an overall national policy. The ICC, however, is disconnected and autonomous, causing consequences for which it bears no responsibility.
In fact, Sudan’s decision to expel Western humanitarian aid groups in retaliation for Bashir’s prosecution now threatens to make the grave humanitarian crisis in Darfur even worse. While the Security Council has tried for years to create an effective international peacekeeping force in Darfur to reduce the violence and provide security for humanitarian relief deliveries, the ICC’s indictment has simply made matters worse, and will continue to have that unfortunate effect well into the future.
For too many Westerners, the ICC is a substitute for a truly effective response against the repression and violence taking place in Darfur. Unable or unwilling to do what is necessary to resolve the Darfur crisis, these Westerners are content with “gesture politics,” symbolic acts which may make them feel better about themselves, but which have no positive impact where the tragedy is actually occurring. The world’s hard men, like Bashir, are not deterred from committing outrageous and inhumane acts for fear of being arrested if they travel to the great capitals of Europe. That may deter those who create institutions like the ICC, but Bashir and his ilk are quite content to stay in the world’s Khartoums and run their cruel and authoritarian governments as they see fit. Moreover, many other governments around the world, attracted to Sudan’s rich oil reserves, will happily finance Bashir and those like him, making Sudan’s current government essentially immune from economic pressure.
Although many sincere people argue for “humanitarian intervention” in Darfur, or “the responsibility to protect” its suffering population, no government has yet been willing to take the difficult steps to actually carry out such an intervention. Nor is there any prospect for such action in the foreseeable future because of the tangible — if unpleasant — reality that stopping the Darfur atrocities is not sufficiently in any other country’s national interest that it will order its own citizens into harm’s way to end them.
The most logical answer to Bashir’s murderous ways is not to indict him from the safety of The Hague, but to empower the Sudanese and others to overthrow him. Then, with new, legitimate authorities in place, the Sudanese could themselves deal with Bashir and hold him accountable for the crimes he has long committed in their name. That is a far better way, if there are to be prosecutions, than trying to hold Bashir accountable in a court thousands of miles away from the crime scene.
A representative Sudanese government might, in fact, chose not to prosecute Bashir and his cohorts, but instead follow South Africa’s route after the end of apartheid. There, the new democratic government created a Truth and Reconciliation Commission to bring to light the facts of apartheid’s cruelty, and thereafter to move forward. One can advocate either prosecution or reconciliation, but that decision should ultimately be for the Sudanese to make. Removing the decision from them nurtures false but superficially appealing charges of “Western imperialism,” and ultimately impedes Sudan’s own political development
Even among the most outspoken Western critics of Bashir, no one is lining up for “regime change.” That should tell us something, and no one knows it better than Bashir, faced with the ICC indictment. He had no fear in expelling non-governmental organizations providing aid to the very people the indictment is theoretically supposed to be vindicating. Until the West understands the inherent conceptual defects of the ICC and the consequent real-world risks of its actions, we can, unfortunately, simply expect more tragedy like this in the future.