As major Arab and African opposition to the International Criminal Court’s indictment of Sudanese President Omar al-Bashir emerges, the wisdom of the indictment – and the Court’s power to enforce it – have been called into serious question.
At its recent summit in Libya, the African Union announced that it will not cooperate with the ICC to arrest al-Bashir. This move represents an escalation from a previous request by the AU to the UN Security Council to postpone the indictment. It also brings the AU’s position into line with that of the Arab League, which rejected the ICC decision at its summit in Qatar earlier this spring.
Not all African countries approve of the AU’s stance; Botswana, for example, has reiterated its support for the ICC’s indictment, as has Chad. From AU and Arab League statements, however, it’s clear that strong opposition to al-Bashir’s arrest exists from Capetown to Damascus, with echoes in Beijing. Spoken opposition – and its manifestation in (lack of) deeds as al-Bashir travels abroad unimpeded, undermines the ICC’s authority.
What consequences will that opposition have? ICC Prosecutor Luis Moreno-Ocampo maintains confidence that al-Bashir will face trial, but I have not seen a clear explanation of how or when that will occur. Moreover, some analysts fear that the indictment – however far it goes – will harm, not help, Darfur and Africa. The AU’s non-cooperation with the ICC has already confirmed one of prominent Darfur expert Dr. Alex de Waal‘s speculations and lends extra force to the others:
One of the many tragedies in the ICC’s Sudanese adventure is that it may signal a turning point for international justice, but in the opposite way to that hoped by the Court’s advocates. It’s possible that the Libyan campaign for African countries to de-ratify the Rome Statute may gain some traction, at least insofar as Africa freezes its cooperation with the Court. It’s probable that, quietly encouraged by China and Russia, African governments will rediscover the value of a hard interpretation of sovereignty. They will remind the rest of the world—as Sudan is doing now—that foreigners are guests in their countries and should behave accordingly.
A “hard interpretation of sovereignty” seemed to be on display when “AU Commission Chairman Jean Ping told reporters that the declaration of non-cooperation shows the world that ‘if you don’t listen to Africa, and take our proposals into account, we are going to act unilaterally.'”
With debate on the indictment becoming polarized – and Sudan finding widespread support for its own “hard interpretation of sovereignty” – it is also possible that the ICC is, as some have warned, limiting the prospects for peace in Sudan.
That could be disastrous. The stakes are high: tensions over Sudan’s 2010 elections and 2011 referendum are growing. The United States is keen to play a constructive role in making sure the 2005 Comprehensive Peace Agreement holds, and also hopes to defuse Darfur. But former US Special Envoy to Sudan Andrew Natsios argues that the ICC indictment hinders these objectives because it “has made meeting with [al-Bashir] politically explosive.” Natsios asks, “How do you mediate a peace agreement if you can’t speak to one side’s leader?”
Thus far, the Obama administration has sought a middle ground, engaging with the Sudanese government (and drawing fire for it from human rights groups) but also offering tentative support to the ICC, although the US was not party to its founding treaty. Will continued outreach to Khartoum on the peace process eventually necessitate undermining the ICC? If so, the Obama administration may find itself in an awkward position, and the ICC may find its legitimacy and efficacy questioned even further.