This past week the International Criminal Court issued an arrest warrant for Sudanese President Omar al-Bashir for crimes committed in Darfur. Although surely motivated out of good intentions, this warrant will prove to be a test of the court’s legitimacy and strength. While looking at it that way, we are forced to ask, will the ICC be stronger for it or will it be shown to be another “paper dragon” institution of international governance?
Much like Israel’s attacks on Hamas, which had the unfortunate side effect of reinvigorating the stalled movement, the prospect of foreigners (especially ones located in Europe) passing judgement on their head of state seems to have rallied many Sudanese around al-Bashir. The warrant served as an opportunity for al-Bashir to shore up his support with street rallies and the expulsion of many foreign aid agencies from the country. Now the Sudanese leader is threatening to expel peacekeepers, other NGO’s, as well as any foreign embassies that “violate the rules of the country”. Al-Bashir is calling the international community’s bluff while laying all of his cards down, after all now he has very little incentive not to go toe-to-toe with the international community. What has he got to lose?
Whenever we use the terminology of the “international community,” is it important to recognize that there is rarely a consensus among the two hundred some nations of the world, and this case is no exception. Some of al-Bashir’s fellow African leaders have come out, somewhat bizarrely, in support of him. Outside of those countries that want to stall the prosecution, no one else knows quite what to do next. Though President Obama has supported the indictment of al-Bashir, the United States is not a party to the ICC (yet) and therefore is not bound to action. In fact, no one seems bound to action. And here lies one of the primary problems with international human rights law, the difficulty of enforcement. Beyond the possible damage to the court’s legitimacy, it has been suggested that the indictment of al-Bashir could negatively affect the Darfur peace process.
Certainly it would seem that al-Bashir is not going to come quietly, and who exactly is going to go and get him? And if no one goes and gets him, doesn’t that just expose the weakness of the ICC and the lack of global consensus on enforcing the power of the court? So at the end of the day, al-Bashir can dance around the streets of Khartoum without too many worries. He is asking us, implicitly, one of the great questions of real-politick. Instead of the classic, “How many battalions has the Pope?” he is asking:
“How many battalions has the ICC?”
The answer to that question is obviously zero, but it remains to be seen how many battalions are willing to back the ICC. And that will be the greatest measure of how effective the court will be now and into the future.