When Justice and Power Converge

Muhajiriya, Sudan, the site of massacres in 2007, is in flames once again. In this South Darfur town, more than 30,000 people have been uprooted from their homes. New York Times columnist Nick Kristof has cited reports that the Sudanese government has resumed the lethal trifecta of aerial bombardment, Janjaweed militia attacks, and ground invasion that prompted the American government to deem the Darfur conflict a genocide in 2004. Yet, at this moment, a confluence of several independent events may produce a resolution that was not possible before.

Last week, the Times reported the impending indictment of Sudanese President Omar al-Bashir by a pre-trial panel at the International Criminal Court. Having received Prosecutor Luis Moreno Ocampo’s application for an arrest warrant in July 2008, the panel will likely issue the warrant within the next two weeks. At the same time, the Kenyan government is deliberating over whether to try suspected perpetrators of last year’s post-election violence or to ask the ICC to open an investigation. Likewise, the Palestinian Authority has asked the ICC to open an investigation into the situation in Gaza, forcing the court to evaluate the Palestinian claim to statehood.

For people concerned with justice for the worst crimes, it is time to capitalize on this unusual moment of convergence. Even those for whom justice is secondary have reason to pay attention. Nothing less than the authority of the United Nations Security Council is at stake. At this extraordinary moment, the ICC’s promise of international justice has captured the imagination of national actors with divergent agendas, interests, and loyalties.

A flashpoint in global politics since its creation in 2002, the ICC initially exposed the internal contradictions of American foreign policy. When the ICC’s founding treaty, the Rome Statute, entered into force in 2002, Congress responded by passing the American Service Members Protection Act, also known as the “Invasion of the Hague Act,” which authorized the president to invade the ICC’s headquarters in the Netherlands to release any hypothetical U.S. or allied military personnel detained by the ICC.

A cursory examination of the Rome Statute reveals the ludicrous nature of this legislation. The treaty in question belied the fears of the act’s supporters; by operating on the principle of complementarity, the ICC will only investigate cases in which the state with jurisdiction over it is unwilling or unable to investigate or prosecute. Yet on March 31, 2005, when the United Nations Security Council referred the situation in Darfur to the prosecutor of the International Criminal Court in Resolution 1593, the U.S. was left in the embarrassing position of having to abstain from a resolution calling for an investigation into a situation it had deemed a genocide. Since then, the U.S. government has pledged to support the ICC proceedings on Darfur.

Just as the U.S. learned, other states, too, must realize that they cannot selectively apply the law. For example, the African Union, the Group of 77, and the Arab League all oppose the impending indictment of Sudan’s president. But a country like Libya, whose president heads the African Union, cannot object to the impending ICC indictment without diminishing the already difficult case of the Palestinian Authority, one to which it is more sympathetic. And Russia, which voted for Security Council Resolution 1593, cannot now ignore the arrest warrant simply because it disputes the results of the investigation it authorized. Once the ICC’s pre-trial chamber issues the indictment, the onus falls on the Security Council to act. The Court cannot enforce its own arrest warrants. The council, however, can either choose to defer the prosecution for a year under Article 16 of the Rome Statute, or it can act to enforce it.

If the council’s members fail to act once the arrest warrant has been issued, then they will set a precedent that diminishes not only the deterrent potential of justice but also their own authority. If the Security Council allows a sitting head of state to remain in power after the ICC has indicted him for war crimes, crimes against humanity, and perhaps even genocide, then it will have ceded a bit of its own power.

The ambassadors of the 15 nations on the Security Council—most importantly, the Permanent Five—may not realize this danger. To that end, concerned citizens would do well to inundate their offices with phone calls and petitions as soon as the indictment is announced.Admittedly, even prominent American academics and human-rights activists are divided over the implications of the indictment. Alex de Waal, a senior fellow at the Harvard Humanitarian Initiative, has argued that an indictment could derail peace negotiations and lead to reprisals against Darfur’s civilian population. But, given the failure of all previous peace negotiations and the already dire situation on the ground in Darfur, this may well be a risk worth taking.

This is new territory for the ICC, the international community, and, above all, the people of Sudan. At this exceptional moment, the interests of peace, justice, and power converge. It’s time to start calling those ambassadors.


Joanna I. Naples-Mitchell ’10, a Crimson editorial writer, is a social studies concentrator in Kirkland House.