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Posted Tuesday, July 15, 2008 11:16 PM

Sudan: the International Court's Big Test

Newsweek
By Jonathan Tepperman

Since the International Criminal Court decided to indict Omar Hassan al-Bashir, the President of Sudan, for war crimes earlier this week, the chorus of criticism has grown deafening. Khartoum, with support from Beijing and Moscow, is outraged by what it sees as a flagrant invasion of Sudan’s sovereignty. U.N. and African Union bureaucrats and aid workers worry the charges will imperil the safety of peacekeepers and aid workers in the country (and with reason; AU troops there have increasingly become targets of late, scarcely able to protect themselves let alone the people of Darfur). Meanwhile, pundits opine that the indictment represents another instance of overreaching by an international body, and will make any peace settlement in Sudan even harder to achieve (by reducing Bashir’s incentives to cooperate). The old debate over whether it’s better to seek justice or peace (which may mean offering amnesty to the worst malefactors) has been taken up once more.

There are several problems with these arguments. As for sovereignty, that’s a nonstarter. Since Nuremberg, the international community has recognized that certain laws and norms have universal jurisdiction, applicable everywhere. And a new principle of international law adopted by the Security Council in 2006, known as the responsibility to protect, holds that local governments can now effectively default on their sovereignty when they egregiously abuse their own citizens--as Khartoum most certainly has. The case for overreaching is similarly thin. Luis Moreno-Ocampo, the chief prosecutor of the ICC, is no cowboy, and didn’t undertake this indictment on his own initiative. He was doing his job. The Security Council itself (including Raussia and China) first ordered him to investigate the Sudanese government in 2005, and the indictment was a natural conclusion of that process.

The big question is whether the charges will make any difference in Sudan. In terms of the peacekeepers, the real problem is that most countries who have promised to send troops haven’t done so. It’s taken five years to deploy just 9,000 soldiers there, and those units are undermanned, underequipped and unable to function effectively. As for Bashir, this isn’t the first time a head of state has been indicted by an international tribunal--that precedent was set with Slobodan Milosevic and Charles Taylor. But the trick will be getting Bashir in the dock. Given Sudan’s record of defying the international community, that’s unlikely to happen short of regime change in Khartoum, which is also unlikely. Remember that Moreno-Ocampo has no police force to make arrests, and Russia and China will surely block any further action by the United Nations.

Will the indictment actually make things worse, however, by reducing the likelihood that Bashir will deal? Again that’s unclear, but it seems unlikely. First, remember that there currently is no peace process underway, so the charges won’t disrupt anything. Second, as Richard Goldstone, former prosecutor for the Yugoslav tribunal, argues, indictments during the Balkan wars in the 1990s actually made things easier by removing some of the most notorious hardliners from the bargaining table.

On balance the depressing reality is that the real impact of the indictment will probably be minimal, at least in the short term. And that could prove to be the real problem. While the charges won’t make things worse (or better) for the people of Sudan, the credibility of this fledgling court is on the line. If it flubs its first major case, that could have negative repercussions in similar instances of genocide and abuse further down the line. So the stakes are high; and while the outcome of the court case is far from clear, the circumstances don’t seem encouraging.
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