BY EAMON KIRCHER-ALLEN
Images in the Save Darfur Coalition’s television advertisements tug at the heart: a child who has been raped; a man with a bloody stump where his arm should be; another man, in tears, recalling the death of his family when militiamen burned his village.
Save Darfur and other activist groups have harnessed scenes like these to highlight what they say is the pressing need for the United States to back the International Criminal Court’s prosecution of Sudanese president Omar al-Bashir, who stands accused of genocide and other war crimes.
But for all the emotional starkness of the suffering in the Darfur region of Sudan since 2003—hundreds of thousands dead from disease, hunger and violence; 2.7 million displaced—the international community cannot agree on the best way to achieve peace, stability and justice there. A policy debate, played out in op-ed columns, calls to congresspersons and high-level diplomatic circles, pits American activists against the African Union, the Arab League and some humanitarian aid groups, legal scholars and academics.
Critics of the ICC say that genocide charges against Bashir threatens painstaking efforts at reconciliation between the Sudanese government in Khartoum and peripheral areas, and may provoke Bashir or his rebel foes to further violence. Some also question the underlying legitimacy of the legal proceedings, since the ICC is controlled by the Security Council, some of whose members—including the United States—never signed the treaty that created the court.
Reports of a Warrant, a Scramble for Advocacy
Rumors early last week that the ICC was poised to issue an arrest warrant for Bashir—which would be the first issued by the court for a sitting head of state—renewed the urgency of the policy debate, which has been gaining force since prosecutor Luis Moreno-Ocampo filed charges in the case in July, 2008.
By Wednesday, the ICC refuted news reports claiming that the warrant was imminent. American activists, however, had already kicked into gear a new phase of their campaign, urging Sudan to comply with the court and the United States to give its diplomatic backing to the ICC. Save Darfur and several other organizations released a joint statement lauding the court and calling an arrest warrant for Bashir an “opportunity for peace”, which the United States could use to push for “a comprehensive, negotiated peace in Sudan.”
But activist groups also anticipated criticisms—most significantly, from the AU—of Bashir’s trial moving forward. Enough, an anti-genocide organization and a member of the Save Darfur Coalition, released a report on Thursday saying that the arrest warrant for Bashir could push the Sudanese president to step up the military campaign in Darfur, and that it could embolden rebels who might consider it an endorsement of their insurgency—both claims that ICC critics have made. Still, Enough said a diplomatic push by the United States could avert a plunge into further violence.
Other activists agreed. The ICC case “is a useful tool to get Bashir to change his behavior,” said Sam Bell, the director of advocacy at the Genocide Intervention Network, a Save Darfur member. Bell said that if the United States appointed a special envoy on Sudan to rally other powerful countries around the ICC’s decision, Washington could help avert instability. Bell and other activists also said they wanted the Obama administration to engage China as much as possible—they are worried that China could use its Security Council to delay the Bashir case.
Advocacy materials from different groups affiliated with the Save Darfur Coalition suggested that they hoped the ICC indictment of Bashir would lead to his peaceful removal and a just resolution of the Darfur conflict.
International Ambivalence
But while the well-oiled Darfur advocacy machine in the United States has few doubts about the international court’s process, there is a deep ambivalence in Africa and elsewhere about the court—both its case against Bashir and its general political architecture.
“Well-connected individuals fear that the indictment may spell the restriction or expulsion of UN missions … and new outbreaks of violence,” wrote Alex de Waal, a Darfur researcher at the Social Science Research Council, in a July, 2008 post on his blog, “Making Sense of Darfur”.
Meanwhile, popular opinion in Africa leans against the ICC. The African Union—whose soldiers form the backbone of a 26,000-strong international peacekeeping force in Darfur—has requested that the UN Security Council suspend Bashir’s indictment.
“I think a lot of that is carried-over mistrust from the Bush years,” said Howard Salter, an activist and former USAID official who called for President Barack Obama to support the ICC case against Bashir in a Baltimore Sun op-ed earlier this month. He said he hoped that Obama would work his “diplomatic magic” to get the AU to support the indictment.
But de Waal, who has extensively researched Darfur since the 1980s, wrote in his blog that African mistrust of the ICC case might have deeper roots.
“It represents an expansion of western power at the expense of African concerns, including national sovereignty and the possibilities of pursuing local mechanisms for justice,” de Waal wrote.
There is an irony to the court’s working structure. The strongest push to prosecute Bashir is now coming from the United States, which has never signed the treaty that formed the court. Critics say this means that, as a member of the Security Council—which is in charge of referring cases to the court—the United States can use the ICC to punish enemies while ensuring that Washington will never be subject to its judgment.
Some ICC supporters acknowledge the contradiction, but claim that the court was never designed to prosecute countries like the United States, anyway. The ICC was set up to try only those criminals who “live in countries where there is no proper judicial system,” Salter said.
But others, like Columbia University professor of government Mahmood Mamdani, caution that ICC cases like Bashir’s can dangerously infringe on sovereignty, and harm Sudan’s long-term quest for peace.
“Only those who are sovereign can reform,” Mamdani said at a talk at Columbia about the ICC and Bashir last fall. “Don’t hold others to standards to which you do not hold yourself.”