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The International Criminal Court’s arrest warrant for Sudanese president, Omar Hassan al-Bashir, is already serving—just as the African Union had feared—to worsen the plight of people in Darfur and to threaten peace processes in the region. More broadly, it bodes ill for efforts to create a new moral order based on the principle of no impunity for war criminals.

Bashir, who rode to power 20 years ago on the back of a military coup, is charged with war crimes in Darfur. No doubt he has blood on his hands. But this is a complex conflict that predates his presidency, and there have certainly been other villains in the Darfur piece—by no means all of them ‘Arab.’

Predictably, Bashir has responded to the ICC indictment by expelling NGOs involved in Darfur relief operations. The NGOs, Bashir claims, were “collaborating” with ICC prosecutors. One of the NGOs, Médecins Sans Frontières, was quick to refute this, stressing their role as a “medical” organization that is strictly “impartial.” This is disingenuous. MSF espouses a mix of relief and advocacy roles, attaching great importance to its presence as a witness in conflict zones and emergencies. It is in the very nature of the organisation to expose and denounce what it sees as human rights abuses. Bashir is not wrong to see the ICC indictment as the culmination of a growing chorus of denunciations from international NGOs, newspaper columnists and Hollywood celebrities.

As well as provoking an immediate hardening of attitudes on Darfur, the indictment risks wider political instability that may jeopardise a Comprehensive Peace Agreement which Khartoum reached with southern Sudan in 2005. The south is heading for formal secession following almost continuous civil war since the 1956 departure of imperial Britain—which left behind not only the largest but also one of the most unpromising polities on the African continent, where the colonial administration had itself forged deep regional and ethnic divisions. During much of the ensuing strife the United States supplied Khartoum with military equipment. Nevertheless, Bashir, war criminal presumptive, agreed to resolve this historical mess by conceding the south a referendum on secession and promising to respect the results. It was, at best, always a shaky deal. But the ICC warrant will not make it any sounder and may prolong the mess.

Uganda’s unfinished business

ICC thirst for retributive justice is also complicating efforts at regional peacemaking elsewhere in central Africa.

Witness Uganda, where an initially low-intensity insurgency in the north was led by Joseph Kony’s Lord’s Resistance Army, which is widely linked to indiscriminate murder, rape, mutilation, and the forced abduction of children to serve as soldiers. From 1996, the government of Yoweri Museveni started relocating rural northerners—an estimated 1.8 million people in total—to “internally displaced persons” camps in order to clear the ground for counter-insurgency operations. These efforts were stepped up in 2002 with an “Iron Fist” military onslaught.

Kony and his principal henchmen, evil by any measure, are fugitives from ICC justice. They are also military and political losers who, several years ago, were beaten across Uganda’s borders into hide-outs in neighbouring Sudan and the Democratic Republic of Congo. Yet Kony continues to resist a political settlement: almost certainly in part because the ICC prosecutor has refused to consider amnesty or immunity from prosecution (on the grounds that this would be caving in to “blackmail”).

According to one detailed study, northern Ugandans themselves favour reconciliation rather than retribution. Many of them, including the respected northern political leader, Norbert Mao, argue openly that the government armed forces were responsible for at least some of the atrocities perpetrated against civilians during the decade-long counter-insurgency operation.

Kony failed to turn up for peace talks in Sudan last year. In December 2008, a joint military offensive, involving the armed forces of Uganda, DRC and Sudan (with US military advisers), was launched to capture him and mop up the remnants of his army. It failed. In response, the LRA went on the rampage in southern Sudan, north-east DRC and the Central African Republic, killing at least 900 civilians since Christmas, according to UN estimates, and displacing thousands more.

Kony’s intransigence is almost certainly strengthened by ICC charges that leave him to choose between continued warlordism and humiliation in The Hague followed by a life in jail. In response to the joint military assault he scattered his brigands to slaughter at will. However repugnant, this was a rational evasion tactic. His best hope is that no one will dare disturb ‘the Lord’s’ hornet’s nest again.

Uganda desperately needs to sort this out: both to bring lasting peace to its own north and to maintain amicable relations with neighbouring countries—notably the DRC, for there is a looming, potential stand-off between Kampala and Kinshasa over recently discovered oil resources. ICC warrants are not helping here.

The possibility of ICC charges is also a likely factor in the refusal of Robert Mugabe and his cronies to release their tired grip on Zimbabwe.

Politics and justice are inseparable

It is worth recalling that the notorious Idi Amin, after wreaking earlier havoc on Uganda, was allowed to sit out 20 years of retirement in Saudi Arabia. Loathsome though he was, his exit gave Uganda another chance. Tragically, that chance was initially blown by Milton Obote, who also proved murderous. After his ousting by Museveni’s National Resistance Army in 1985, Obote too went into retirement-exile, in his case to Kenya and then Zambia. Mugabe likely yearns for similar release.

It was precisely to end this cycle of impunity—appalling leaders of murderous regimes being able to retire, scot free, on funds plundered from the states they destroyed—that the ICC was created ten years ago. “No impunity” has been the Court’s constant refrain, underpinned by the argument that convictions secured today will deter tomorrow’s war criminals and thus foster a generation of more responsible leaders. This is a humane vision (which European liberals have vilified the United States government for not signing up to), and one that some human rights advocates believe is coming within reach. Christopher Hall, legal adviser to Amnesty International, told The Financial Times on March 4 that the world is “now treating diplomatic and political events as something to be resolved by politicians and diplomats, and war crimes to be settled separately by investigation and prosecution, just like terrorism and money laundering.’’

But it is not possible simply to separate, with a legal flourish, “diplomatic and political events” from “crimes” and “terrorism;” any more than it is possible to divorce the moral high ground of principled actions from the low-lying, boggy reality of their practical consequences.

Political and military outcomes have always determined whether today’s insurgent becomes tomorrow’s statesman. Take George Washington, for example, that most treacherous ever subject of His Britannic Majesty. And, more recently, what chance would the Northern Ireland peace process have stood if Martin McGuiness and Gerry Adams—until recently regarded by the British state as terrorists, but now seen as key political leaders and keepers of the peace—had been indicted by the ICC?

There’s no sign of the ICC venturing that far north, though. For, to date, all of its indictments have been brought against Africans. This leaves the Court open to the charge, levelled by Ugandan-born Columbia University professor, Mahmood Mamdani, in The Nation last September, that it is “a Western court to try African crimes against humanity.” This is why so many African intellectuals—even those who are in the global NGO/human rights community—are uneasy with the ICC ruling on Sudan. (See, for example, the International Crisis Group Horn of Africa Director, Fouad Hikmat, The East African.)

If Bashir, why not Bush, Blair and Olmert? Why not Vladimir Putin? Why not Hu Jintao? It all depends on your political and national perspective. Deciding who to go after, even with the noblest of intentions, is clearly not merely judicial. It is profoundly political.

Nick Young
Kampala, March 11, 2009