It Was A Mistake To Indict This Dictator For Genocide

Sudan President Omar Hassan al-BashirREUTERS/StringerSudanese President Omar Hassan al-Bashir addresses a crowd in North Khartoum

The International Criminal Court (ICC) is suspending its investigation into the conflict in Darfur in western Sudan, which has killed 300,000 and displaced some 2.3 million more

As The Guardian reported, ICC prosecutor Fatou Bensouda announced on Dec. 12 that “she was halting investigations to ‘shift resources to other urgent cases,'” and “criticised the UN security council” for failing to push for the arrest of Sudanese President Omar al-Bashir.

Bashir’s indictment for war crimes, genocide, and crimes against humanity at the ICC in 2009 was a watershed moment in international politics. The indictment was the court’s first of a sitting head of state. As far as the court was now concerned, no individual was beyond the reach of international law. Accountability for human rights abuses couldn’t wait until a war’s conclusion.

The move was politically consequential as well. The indictment obligated 122 ICC member states to arrest Bashir if he ever set foot on their territory. It also meant the ICC saw its role as going far beyond the retrospective application of justice. In ordering Bashir’s arrest, the court took an outwardly activist role in a simmering conflict with international dimensions, establishing a precedent wherein a nascent global legal system could be used as an instrument to end atrocities as they unfolded and deter atrocities before they began.

But the legacy of the indictment has been far different from what the Court and its supporters imagined.

Bashir’s indictment rallied portions of Sudan’s population around him and made him a focal point for leaders who bristled at the idea of a distant, Europe-based institution infringing on the sovereignty of African states.

A series of countries failed to arrest Bashir when he visited, including Kenya, Qatar, Ethiopia, Saudi Arabia, and Egypt. Every visit to an ICC member state weakened the indictment and with it the authority of the court. Ironically, the indictment proved the court wasn’t practically capable of enforcing its orders and that some of its membership did not want to enforce them at all.

The indictment did impose strict limits on Bashir’s travel. It managed to keep up Khartoum’s isolation and might have served as a source of international leverage over the regime when it decided to allow the country’s oil-rich southern third to peacefully secede in July 2011, creating the independent state of South Sudan. But the indictment didn’t end the war in Darfur or change the regime’s behaviour in the region. The conflict continues to this day, with 400,000 people displaced by violence in 2013 alone.

The Bashir indictment eroded the ICC’s authority while yielding few tangible benefits in return. If the Court demonstrated that any sitting head of state was subject to its orders, Bashir countered with an example of how time and stubbornness and the international community’s actual priorities could completely negate that authority. The countries that allowed Bashir to visit didn’t arrest him because they didn’t believe it was in their interest to do so — regardless of the commands emanating from a courtroom in another continent.

The end of the ICC’s Darfur investigation should dispel the fantasy that wars can be settled by a distant collection of jurists, or that even the boldest of moral statements can be a replacement for coherent policy. Reducing the Darfur conflict to a narrowly legalistic formula may actually have made it more difficult for international actors to pursue a peace process in good faith. And the fact that the indictment meant that Bashir would face charges regardless of how the conflict’s resolution might have skewed the regime’s incentives and made a resolution less likely.

Bashir is deserving of sanction — he’s been in power for a quarter-century and has one of the longest rap-sheets of any dictator alive.

But the solutions to the problems his regime poses don’t reside in any existing legal system. And the cause of peace in his troubled country was hardly aided by delusions to the contrary.

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