Christine Chung is a Senior Fellow at the Schell Center for International Human Rights, Yale Law School where she teaches “The International Criminal Court: Prospects for Global Justice.” Ms. Chung was the first senior trial attorney appointed at the Office of the Prosecutor of the International Criminal Court and worked in The Hague from 2004 to 2007.
If you’re looking for the justification for the front-page media headlines about the ICC warrant naming Sudanese President Omar al-Bashir, there are two, to my mind. First, the world’s permanent international criminal court has charged a sitting head of State, and sister States aren’t close to hand-wringing over immunity. (My academic colleagues are a different matter – read, for example, Marko and Dapo). Yesterday’s decision might be the nail in the coffin of the era in which heads of State escaped being called to account for perpetrating atrocities.
Second, the decision of Pre-Trial Chamber I to decline to include the charge of genocide requested by Prosecutor Luis Moreno Ocampo (by a 2-1 vote) reinforced that pursuing a genocide charge is, for an international prosecutor, fraught with peril. The old legal issues of how to define an “ethnic” group and where to find the specific intent to destroy a group (in the usual case, where there is no direct evidence) were very much in evidence in the Chamber’s split opinions. On top of those, the Judges wrestled with questions about the degree to which the ICC should adopt or follow genocide jurisprudence from the ICJ and the ad hoc tribunals, the proper interpretation of the “reasonable grounds” standard applicable at the stage of evaluating a request for an ICC arrest warrant, and how to reconcile the Rome Statute provisions with the ICC Elements of Crimes. Bottom line: the need to settle the law of this new Court, if anything, further complicates the already extremely difficult business of proving genocide.
As fascinated as we lawyers are by judicial decision-making, though, it’s more important in Bashir’s case to identify what did not change yesterday. The reality is that since mid-July of last year, when ICC Prosecutor Luis Moreno-Ocampo first announced that he was seeking a warrant naming Bashir, there’s been zero suspense that one day the ICC Judges would grant his request. Yesterday’s decision to issue the warrant was no great shakes in terms of Bashir’s expectation, or that of States or the Security Council. The warrant long imagined is now being typed. The real question is: what have the Security Council, States, and the government in Khartoum been doing for the past seven months to prepare themselves for this moment? What steps will be taken next to fulfill the objectives the warrant is meant to serve: the ending of impunity and the prevention of atrocities?
The next immediate moves will be from the Sudanese government. Again, the members of the Security Council laid their markers months ago and nothing that happened yesterday is likely to change them. The U.S., the French and the British have made it clear that unless the Sudanese government makes dramatic progress in achieving peace, there will be no consideration of deferring the ICC prosecution of Bashir. The idea is that the chatter of having to choose between peace and justice is wholly premature until the Sudanese Government puts itself firmly on the road of peace. After five years of running a killing campaign, Bashir retains the power to influence his fate. Whether he moves in the direction of sincere attempts at peacemaking, or follows through on threats made by his representatives to escalate the violence, will determine the basis for the response formulated by the Security Council.
Equally important is what the States now do. The media reporting, predictably, focuses on the potential for the dramatic denouement: Bashir slapped in handcuffs while traveling abroad. The change to look for in the short term is more modest. Now we’ll learn whether States have prepared, in the last seven months, to alter their ways of dealing with Bashir. Will Bashir, at a minimum, be asked to stay away from international meetings and conferences? In bilateral relations, who will continue to shake Bashir’s hand and take his phone calls and who will ask to deal with a substitute? Of course the time is ripe also to consider stronger measures, such as additional sanctions from the Security Council. But the first and most basic thing that Bashir must see, if the warrant is to have its intended effect, is no hope of “business as usual.” Any prospect that Bashir will see the necessity of changing his government’s course, in the direction of ending the violence instead of engaging in more blackmail, depends on him being forced to live the experience of being marginalized.
A senior U.S. official from the last administration tellingly remarked that in Darfur, the ICC was “the only game in town.” And indeed, in the now nearly four years since the U.N. Security Council chose to invoke the option of pursuing international justice, it’s become clear that the ICC intervention opened an opportunity to pressure the Sudanese government into pursuing peace and justice, when other options had proven to be the deadest of dead-ends. Nothing has rattled Khartoum like the ICC. In addition, while the violence in Darfur has not abated, the predictions that the ICC intervention would feed the conflict have also not been borne out. He’s still throwing rhetoric, but Bashir seems to have absorbed the message, delivered in a unified voice so far by the UN, the EU, and individual States, that ICC action or no ICC action, he bears responsibility for the safety of the Sudanese people.
None of this means that continuing to steer the ICC prosecution in a way that maximizes the possibility of good outcomes (or some outcome better than continued mass atrocities) will be easy. Having supported the ICC initiative this far, what makes sense is for the relevant actors-mainly the Security Council and States-to work together to continue sending the message, in large and small ways, that Bashir himself will pay the price if his criminally over-broad counter-insurgency campaign in Darfur does not end. Arrest could be, as the Prosecutor pointed out today, a matter of “two days or two years.” On a day-to-day basis, the challenge remains to use the warrant–and the truth contained in it–to push forward the twin objectives of peace and justice.