Moves to stop ICC prosecution of Bashir
September 22nd, 2008 • Africa, Conflict, Law, UN
Britain is being criticised for backing moves to stop the prosecution of Bashir at the ICC. Though one of the backers of the ICC and the original resolution by the Security Council referring Sudan to the ICC, it now seems Britain, and others, think the ICC prosecution could do more harm than good.
Britain and France say privately that the lines of communication with Khartoum are nearing total breakdown. The Sudanese authorities are blocking the work of the 11,000-strong Unamid peacekeeping force and have not handed over two other ICC suspects – government minister Ahmad Harun and militia chief Ali Kushayb – for whom arrest warrants were issued last year.
This is always the danger with pushing for judicial resolutions to conflict, while the person who will be prosecuted is in power. Prosecutions create disincentives for them to continue negotiating or compromise their position. The better choice for them, since everyone thinks they are war criminals anyway, is to stay in office, in country, as long as possible and to keep rorting the system.
Of course, that’s not necessarily an argument against the ICC Prosecutor intervening in all circumstances. Theoretically, if people know they are liable to be prosecuted then they have a greater incentive not to break international law in the first place; and it may reign in their worse instincts. Of course this depends on people expecting the ICC to actually prosecute them.
But Steve Crawshaw of Human Rights Watch said bargaining with justice will permanently undermine the ICC’s credibility and independence. ‘The idea that you can do deals on justice is both short-sighted and a shocking moral abdication on Britain’s part. It can only be damaging to the court.
‘Justice is not a tradeable option. We have seen again and again that Sudan makes empty promises. To think that Sudan is likely to act in good faith is either naive or cynical,’ said Crawshaw.
I think what Crawshaw misses in the above quote is that in some cases justice is a tradable option. Sometimes it is better to get peace sooner than keep pushing for ‘justice’ (that is in the way the word is being used here). The ANC was forced to do so in South Africa and opted for ‘reconciliation’ over a judicial option and Rwanda’s obsession with ‘justice’ is causing massive human rights violations for the 100,000 accused languishing in prison.
Though I think the two key issues in this instance is, first, the dithering of the Security Council Members over the right course of action to take – the back-and-forth between prosecuting/not-prosecuting does not bode well for expectations of international prosecution; and second, understanding pacing issues and when pursuing ‘justice’ works with the peace process and when it is better to wait.
Kevin Heller at Opinio Juris has more.
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