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The Audacity Of Courts

So the prosecutor for the International Criminal Court has formally requested an arrest warrant for Sudanese President Omar al-Bashir on charges of genocide, crimes against humanity, and war crimes in Darfur. To no one’s surprise, the Sudanese government has rejected the charges as baseless, but one criticism that’s also coming from some members of the international community is that the ICC’s actions will jeopardize the fragile humanitarian relief effort and security environment in the country. According to one expert quoted by The New York Times, popular demonstrations in support of the court are likely to spring up in Darfur’s refugee camps and “explode into violence,” bringing the threat of further bloodshed.

This is wildly frustrating, of course. Of course we need to mitigate any threats to the humanitarian relief effort and to the peacekeeping forces, and it’s true the crisis in Darfur has escalated to such a point that there will be negative short-term consequences for any action taken. But to argue that such risks should stay the hand of the ICC at the risk of “breaking the peace” is absurd, mainly because there isn’t any kind of meaningful peace process that’s currently underway.

At the least, the court’s arrest warrant could serve as a leverage point for the UN Security Council. The Security Council has the power to forestall the ICC’s proceedings for at least a year under Article 16 of the court’s statute. It could conceivably invoke this article and stave off the ICC’s prosecutions if the Sudanese government agrees to behave better--at a minimum, they could demand a halt to the bloody attacks on international peacekeeping and humanitarian convoys. The ICC will spend two to three months deciding whether to issue the arrest warrant for Bashir, which gives the members of the Security Council enough time to articulate their expectations of Sudan’s leaders and evaluate the progress made. What’s more, the threat of prosecution is also likely to exacerbate internal rifts within the government's power structure itself, potentially opening a window for the regime's more reform-minded survivalists to step up.

Finally, the ICC could have a significant impact on another international actor: the European Union, which led the effort to bring the ICC and its investigatory team into Sudan to begin with. The EU has yet to impose the kind of broad-ranging financial sanctions that the United States has imposed upon Khartoum, and the ICC's actions could ratchet up pressure for European leaders to take a harder line against the regime, Colin Thomas-Jensen, a policy analyst for the ENOUGH Project, told me in an interview today. However constrained its reach, the ICC's willingness to act is far better than nothing--and other international actors should be taking the cue.

--Suzy Khimm