Dworkin: Sudan's President Charged with Genocide: A Critical Moment for the ICC

Anthony Dworkin at the Crimes of War Project has posted Sudan's President Charged with Genocide: A Critical Moment for the ICC. Here it is:

By naming Sudan's president as a suspect for genocide over Darfur, the prosecutor of the International Criminal Court has taken his most dramatic step since the Court came into being six years ago. The move has caused alarm among diplomats and aid workers, who worry that it may complicate efforts to aid civilians in Darfur and end the conflict there.

But it would be a mistake to look for a short-term political fix that could do serious harm to the wider cause of international justice. Countries that supported the creation of the International Criminal Court, and above all the members of the UN Security Council who gave the ICC jurisdiction in Darfur, should now let the judicial process take its course.

In 2005, Britain and France led efforts to pass a resolution at the United Nations Security Council that gave the Court jurisdiction over war crimes in Darfur. Because Sudan is not a party to the Court, it would not otherwise have been able to look into atrocities committed there. The British ambassador to the UN said at the time that holding war criminals accountable would contribute to both peace and justice.

Now there is growing concern that the interests of peace and justice may conflict. The cooperation of Sudan's government is essential for the deployment of peacekeepers and the delivery of humanitarian aid. Since regime change in Sudan is not in prospect, no peace agreement in Darfur can be imagined without President Bashir's consent. If the International Criminal Court's judges agree to the prosecutor's request for an arrest warrant (a decision they will not make before September), it is hard to see how European officials can continue to deal with the Sudanese leader.

But the consequences of the charges against Bashir are unpredictable. There have been earlier cases where dire warnings about the consequences of charging heads of state with war crimes have proved unfounded. The Yugoslav war crimes tribunal announced charges against Slobodan Milosevic during the war over Kosovo, and he accepted NATO's ceasefire terms only a few days later.

Moreover, in the case of Sudan, there may be ways of managing the impact. If the Court issues an arrest warrant, it would only be binding on states that are members-so countries like the United States and China, which are not party to the Court, could continue to negotiate with the Sudanese regime. In the meantime, it is essential that all countries involved in the aid effort in Sudan emphasize that the Court is an independent body that follows its own procedures. Diplomatic statements that seem to rebuke the prosecutor for his action would undermine this message and could give legitimacy to any Sudanese retaliation.

The Security Council has the power under Article 16 of the Rome Statute to suspend any case before the Court for a year at a time, and there have been suggestions that it should do so now. But it would be devastating for the credibility of the ICC if the Council were to suspend the case at this moment, when the situation in Darfur has not greatly changed since the same body voted to allow the Court to investigate. Instead, the Security Council should keep the prospect of a deferral in reserve as an incentive for President Bashir to engage genuinely in peace negotiations with rebel groups.

The prosecutor's inclusion of genocide among the charges is ambitious, and might be difficult to sustain if the case eventually comes to trial. He said in a statement that conditions in Darfuri refugee camps were calculated to bring about the destruction of the three tribes that have been the primary victims: "In the camps, al-Bashir's forces kill the men and rape the women. He wants to end the history of the Fur, Masalit and Zaghawa people."

But there should be little surprise that Bashir has been named as a suspect for war crimes and crimes against humanity, given the persistent evidence that has emerged of the involvement of Sudan's military and government officials in attacks against civilians. It seems fitting that the prosecutor should attempt to follow responsibility for these crimes up the Sudanese chain of command, since it is the highest authorities who bear the greatest responsibility for atrocities committed at their instigation.

The movement for international justice remains a recent development in international politics, and it is hard to predict how the objectives of peace and accountability will interact in any particular case. If the indictment of President Bashir turns out to be an obstacle to a settlement in Darfur, it may make the ICC's supporters think more deeply about when they call for it to be given jurisdiction over future conflicts. But having already taken the gamble of giving the Court a role in Darfur, the international community must now resist any move that would undermine the ICC's legitimacy and set back the cause of international justice as a whole.