A major debate has been brewing over whether the ICC’s decision to issue an arrest warrant for Sudanese President Omar Al Bashir was a “good idea”. In my view, our answer to this question depends on our criteria for a “good idea”. I think a common perception is that this is a justice versus order issue. Justice may be achieved by the ICC’s actions, but at the cost of more lives and greater political chaos in the Sudan. However, a number of commentators have (rightfully) muddied that easy equation. A roundtable discussion at The New Republic is also trying to answer these questions while making suggestions for what, exactly Obama should do.
Criteria One: Good Idea = Contributes to End of the Humanitarian Disaster in Darfur
Probably the most popular criteria is based on the assumption that our primary goal should be to end the current humanitarian disaster in Darfur, whether or not we call it a genocide (I still like Scott Strauss’ Foreign Affairs article on this point).
Julian Ku at Opinion Juris makes the clear academic argument that international criminal tribunals can lead to greater humanitarian atrocities (but not that this is a necessary outcome). Michael Kleinman offers a similar view from the perspective of someone who has worked in the field of humanitarian relief, arguing about the already clear dire humanitarian consequences of the ICC’s decisions.
However, one could also make the argument that the short-term costs are outweighed by the long-term benefits of action, as Kevin Heller seems to in a recent post. After all, someone has to do something about the roots of the crisis and no other actions (yet) seem to aim for that.
Criteria Two: Good Idea = Contributes to the Development of International Human Rights
Human Rights Watch clearly supports the ICC’s decision. In a separate Q&A section, they highlight the cases that arrest warrants against Liberian leader Charles Taylor and Bosnian Serb leader Radovan Karadzic actually helped the peace processes in those countries as well. One can wonder whether these are useful cases as a number of commentators have mentioned that, for instance, the international community only went after Milosevic once the conflict had been settled.
Alex de Waal also makes a great case for how the ICC actions may actually undermine the cause of human rights in Africa. He wonders whether African countries will follow Libya’s calls to de-ratify the Rome Statute of the ICC. I’m not convinced this is really going to happen on a large scale, but it is true that the ICC’s actions may make some African states that have not joined more wary about joining (there are only 30 African states that have ratified at this point, I believe).
Criteria Three: Good Idea = Contributes to Justice (International and/or Local)
As some of the commentators already mentioned above have argued, the question of how to achieve justice is far from clear. Alex de Waal mentions Archbishop Desmond Tutu’s New York Times call for African states to support the ICC and its role in providing justice. However, Alex notes that South Africa demonstrated that retributive justice is not the only form of justice. Additionally, there is the concern that ICC’s actions have undermined the ability of local judicial (and political–there is to be an election later this year) institutions to deal with the problem.
Criteria Four: Good Idea = This is What International Law Tells Us to Do
Some question issues of ICC jurisdiction and whether the UN Security Council’s referral to the ICC undermines the principle of complementarity (the idea that the ICC should be a court of last resort and that local judicial institutions should be used first).
Relevant to these points is a consideration of the proper role of the ICC. Should we think of ICC prosecutors as we think of criminal prosecutors in domestic legal systems? A common theme in American legal textbooks is that the role of the prosecutor is “to seek justice”. This is not too different from the primary emphasis described in the Rome Statue: Prosecutors should investigate crimes. Does the ICC really have any responsibility to consider the trade-offs between justice and peace/order? Justice Goldstone has argued that the Prosecutor’s duites are “exernal to the political process of negotiations to end armed conflict”, but there is an “order” dimension to Moreno-Ocampo’s assertion that the Prosecutor’s office should also contribute to the prevention of crimes (see Winfield‘s post on this). But has the international community provided the ICC with all of the necessary tools to consider such trade-offs?
Further Thoughts on What To Do About Leaders We Do Not Like
All of this reminds me of arguments that have been made a number of times about what should be done about problematic political leaders, and especially dictators. Scott Adams, of Dilbert fame, has even piped in on such debates with his idea of a “retired dictator program”. His idea is more serious than it might at first sound. Kieth Hartley at York University, made the argument in 2005 that it would have been cheaper to pay Saddam Hussein to leave Iraq. And, while optimistic about the role of an ICC, Hans Koechler has argued in the past that “the promise of a comfortable pension or discreet exile is sometimes the most expedient way to dislodge despots from power” (cited by Jeremy Bransten).
More generally–and not necessarily directed at “bad” leaders–Mo Ibrahim has wondered whether something should be done to make retirement more attractive to African leaders. This thinking contributed to his prize for African leaders who rule fairly and resign to elected successors.
In many respects, the debate about whether or not the ICC should have issued an arrest warrant for President Omar Al Bashir is rapidly losing relevancy. We now need to turn to thinking about what to do about the current situation. Clearly there have been short-term negative consequences for the humanitarian situation in Darfur. What can we do to make the medium- and long-term situation improve?