Some Implications of the ICC's Arrest Warrant

In keeping with the two preceeding posts, herein lies more commentary on the ICC's unprecendented decision to issue an arrest warrant for crimes against humanity against a sitting president, namely Omar Hassan al-Bashir of Sudan. The implications of the warrant can easily be seen in the short term, as the UN is becoming increasingly concerned over Sudan's expulsion of 13 aid organizations, including Oxfam, CARE, and MSF: these organizations have not only been expelled from Darfur, but from the East and North of the country as well. According to the International Rescue Committee, these organizations collectively aid upwards of 1.75 million people, and thus the question is again begged: to what extent does this International Criminal Court itself share any responsibility for these immense short term dangers?

While this legal and humanitarian question is of pressing importance, it is also essential to bear closely in mind the longer-term implications of the arrest warrant. As for the future of Sudan, it has been argued that the warrant will completely destablize an already precarious peace effort: it is for this stated reason that the Arab League has taken such a firm stance against the ICC's decision. Yet it has also been argued that the arrest warrant for Bashir is a long-awaited beacon of hope for those being victimized in Sudan, signifying a potentially large stride towards attaining peace in the region. Examining the arrest warrant in the context of previous indictments of Liberian President Charles Taylor and the former Serbian President Slobodan Milosevic, as well arguing that the dramatically increased pressure that the warrant places on all parties involved with Bashir will be conducive to a halt in the bloodshed, the ENOUGH Project's recent report illustrates the counterpoint to the position of the Arab League and, indeed, Khartoum itself.

Such are the broad strokes of the debate surrounding the longer-term implications for Sudan itself. Perhaps even more murky - if indeed that is possible! - are the wider implications for the future of international law and prosecution of the crime of genocide. It must not be forgotten that ICC Chief Prosecutor Luis Moreno-Ocampo did not only request that Bashir be arrested for crimes against humanity and war crimes: the Prosecutor also called for charges to be pressed against Bashir for genocide. Yet, in a 2-1 vote, it was decided that genocide would not be included on the arrest warrant because it was alleged that the Fur, Masalit, and Zaghawa ethnic groups being targeted in Sudan did not constitute a "national, ethnical, racial, or religious group" as specified in the Genocide Convention of 1948.

While it is unlikely that activists will now drop the term - many will undoubtedly raise the points that Moreno-Ocampo was denied an investigation within Darfur, as well as the fact that no one called the genocide in Rwanda genocide while it was occurring - the legal implications of the decision to drop the genocide charges are enormous. To what extent and for how long will the Court's strict interpretation of what constitutes a potentially victimized group hold for future cases? In what way will the dropping of the charge of genocide affect the legacy of the mass destruction in Darfur? Ultimately, are horrific acts horrific acts because we label them as such or because they are instrinsically terrible? Yet it is this precise labeling practice which allows - and obligates - the international community to take action on behalf of those being victimized: legally, there is a lot to be beheld in a name.