July 15, 2008

 Attack dog

The fearless prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has filed genocide charges against the President of Sudan, Omar Al Bashir.

The Court's pre-trial chamber must now decide whether to issue an arrest warrant or try to negotiate Bashir's appearance. Assuming any such negotiations will fail and an arrest warrant is issued in the autumn, the ICC states will then have to decide what to do about it. A snatch from Khartoum by the French Foreign Legion would be nice but is I fear unlikely. So the question becomes how this will play out in the peacemaking diplomacy.

The African Union has predictably reacted nervously with fears that Moreno-Ocampo is making a delicate situation worse. Bashir will take this badly (he has) and will do horrible things to the Darfurans! (As if he needs an excuse.) This reaction gives aid and succour to the wingnuts who intone that negotiation is weakness. It can be if done badly. But threats are a staple of negotiation: "Come out in one minute in your underpants or the SWAT team will storm the building!" is a negotiating gambit. "Tell me about your pain" isn't.

Moreno-Ocampo has just handed the diplomats some really good leverage, if their masters have the guts to use it. Bashir now has to think seriously about keeping out of jail. Immunity and a comfy exile in a non-ICC state can be offered as part of a deal that ends the killing and lets the refugees return. The deal would have to be made by the UN Security Council under Article 16 of the Rome Statute, which allows it to suspend prosecutions, with such eventualities in mind.

Ocampo's action puts the USA in a lesser tight spot. He works for an institution the USA noisily wants no part of. But his investigation was carried out on the instructions of the UN Security Council , including the USA. Effective American diplomacy on Darfur now requires support for prosecution in the ICC to keep the threat in being. So which will count for more: saving thousands of poor Africans from murder and rape, or conceding legitimacy to a court which may conceivably at some point seek to try American torturers if US criminal justice fails to? We can sadly predict that the Bush Administration's response will be ruled by solidarity in the Axis of Denial. What would Obama or McCain do?

Readers can contribute to an ad campaign aimed at regional leaders here. Ingeniously, it uses Bush's opposition to the ICC as a selling point!

Update 2

Blogger Backseat driving challenges my reading of the Rome Statute, saying (correctly) that Article 16 suspensions are not permanent but valid for one year, renewable, and (misleadingly) that Liberian president and thug Charles Taylor was put on trial after being given exile. But it wasn't the UN that offered exile but Nigeria, which later caved in to strong international pressure to surrender him. As a practical matter, the ICC prosecutor would not go against the UN Security Council.

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