The Arab League and the ICC

During the 2009 Arab League summit in Doha last weekend, there was much clamor made in support of Sudanese president Omar al-Bashir and his continued defiance of an International Criminal Court (ICC) arrest warrant in his name. Bashir is wanted by the ICC for his  alleged role in the genocide taking place in the Darfur region of Sudan. He has been linked to the Janjaweed militia forces committing the atrocities there and has refused to disarm them.

Hundreds of thousands of people have been killed (“only about 10,000” according to Bashir, as if that number is insignificant) or displaced to some of the most inhospitable territory in the world. International aid groups have been expelled by Bashir from Sudan. The neighboring country of Chad hardly has the resources to deal with the massive influx of refugees. Even if Mr. Bashir didn’t give the orders for what has taken place there, it is still a disgusting way to run a country. Mr. Bashir has expressed no regret and has taken no responsibility for what is happening.

This past week, Bashir travelled to Saudi Arabia to visit the holy city of Mecca in continued defiance of the ICC. The fact that he is even accepted by Saudi Arabia seems insulting to Islam’s most holy city, and to the religion itself. Saudi officials must have considered this before granting him a visa, which makes his presence there even more alarming.

At Doha, the Arab League tried to display a unified front, together questioning the ICC’s credibility and jurisdiction. And they have a point.

The ICC was established in 1998, by a treaty called the Rome Statute,  to handle the most egregious state-level offenses to mankind, such as war crimes, crimes against humanity, and genocide. It’s laws became binding in 2002, after the minimum number of states (60) had ratified it.

The court’s predecessor, the International Criminal Tribunal for the former Yugoslavia (ICTY) was conceived to try defendants linked to atrocities committed during the break up of Yugoslavia in the 1990s based on the Nuremberg trials after WWII. The ICC was established for the noble reason of giving the world a permanent place to try it’s worst offenders. Like the ICTY, the ICC sits at The Hague in the Netherlands.

The court is not perfect. First and foremost, it lacks enforcement capabilities. The court may issue warrants, but must wait until the accused is arrested in a country that has ratified the Rome Statute, of which many nations- including the United States and Israel- are not a party to. The court cannot issue a warrant and then just send the ‘ICC Police’ to make an arrest anywhere on the planet, and whisk the accused back to The Hague for trial.

Also, the United Nations Security Council (UNSC) has sway over the court, which is an inherent conflict of interest. According to Article 16 of the Rome Statute, the UNSC may delay ICC proceedings indefinitely. And only the UNSC can refer cases to the court which involve a countries not party to the ICC.

So the permanent members of the UNSC have de facto ICC jurisdiction over all non-signor states. All states with questionable policies that are not permanent members of the UNSC face the option of either signing the Rome Statute, or not signing and trying to remain in the good graces of the UNSC. In this way the court has been politicized, and the threat of ICC prosecution looms for smaller states that don’t cooperate with the national interests of the UNSC states.

Closer to Doha, the shortcomings of the court are even greater in it’s treatment of Israel. Israel (not a party to the treaty, and steadfast ally of the United States), remains invulnerable to ICC condemnation, and is only subject to the meaningless resolutions passed by the U.N. General Assembly condemning them for whatever latest offense that it has allegedly  committed. Israel continues to illegally occupy Palestinian land, continues it’s policy of apartheid, and continues to operate what many call the world’s largest ghetto/prison, Gaza. (See: Rome Statute, Article 7, Crimes Against Humanity, paragraph 1, charges A, D & H.) But without a referral from the UNSC, the ICC has no jurisdiction.

The ICC took four years to make its first arrest (of Congolese warlord Thomas Lubanga in 2006) and has since made four other arrests, all Africans. This pattern has led to quips of the ICC being redubbed the “ACC” for African Criminal Court. Thus we are reminded of Thucydides notion that strong nations do what the want and weak nations accept what they must. Sudan’s Bashir is from an African nation, but that nation’s oil wealth put him in the category of the former, and gave him the political capital to avoid charges until recently.

Omar al-Bashir is the only sitting head of state to be indicted by the ICC.

The lesson is clear, if you are from a weak country- such as Congo or Liberia- you must submit to the will of the court. But if you are from a strong nation, or close allies with one, you are exempt. (See: Israel, and also Burma, whose dealings with the Chinese keep that brutal and oppressive regime free from outside interference, despite international pressure from human rights groups.)

Which brings us back to Doha. As previously stated, the member states of the Arab League tried to establish a unified front on the issue of the ICC. This is not because the leaders of those nations support genocide (with the exception of Mr. Bashir), it is because they feel isolated in the world and realize that one day, it could be them. The only way to be one of Thucydides’s “strong nations” is to hang together. And no one knows this better than President Bashar Assad of Syria, who has been transparently vocal in his support for Mr. Bashir.

After former Prime Minister Rafik Hariri was assassinated in 2005 in Beirut, many blamed Syria. In what became known as the Cedar Revolution, hundreds of thousands of Lebanese took to the streets to protest Syrian meddling in Lebanese affairs. The Syrian army, which had occupied Lebanon since 1976, was expelled. Just last month, an ICC committee was convened to investigate Hariri’s murder. If the court ends up finding Assad and Syria officially responsible, it could significantly strengthen the anti-Syrian March 14 Coalition, while seriously damaging Syria’s influence in Lebanon.

So it is in Bashir’s and Assad’s best interest to avoid the authority of the court. For Bashir, the warrant has been issued and it’s only a matter of time before he is either captured or loses power (in which case he will likely be either sent to The Hague or hung as a tyrant).

But for Assad, there is still time. It is assured that Syria is doing everything it can to call into question the courts credibility on the surface (like in Doha), as well as behind the scenes, in negotiations with Israel (over the return of the Golan Heights in return for peace) and the United States (over abandoning Iran and Hizballah) to mitigate any damage a negative ICC finding could do.

What’s happening in Darfur is a tragedy, one made worse by Mr. Bashir being welcomed warmly by his neighbors. The fact that his offenses are so easily overlooked by the leaders of the Arab League states in the name solidarity is deplorable, and they should be ashamed of themselves. Unfortunately, this case clearly illustrates the weakness and isolation of the Arab League nations, as well as the shortcomings of the ICC.