LONDON – Earlier this month, the International Criminal Court (ICC) upheld the request of the court’s chief prosecutor to issue an arrest warrant for Omar el-Bashir, the President of Sudan, charging him with war crimes and crimes against humanity. Bashir responded by expelling foreign aid agencies looking after the refugee camps in Darfur.
This is the first time that a sitting head of state has been indicted for war crimes, with reaction around the world mainly divided between those who hailed the move as a great step for international justice and those who condemned it as colonialism. Both positions are hopelessly buried in intellectual and moral fog.
The warrant was no leap forward. From the legal point of view, it makes no difference whether the accused is a sitting or former head of state. But it makes an enormous practical difference that an incumbent ruler can do a lot more future damage to his people than an ex-ruler, and therefore should be given no incentive to retaliate.
As a result of Bashir’s policies, 300,000 people are estimated to have died and 2.7 million displaced in Darfur. The expulsion of the aid agencies has put over a million Darfuris at risk of epidemics and starvation. According to the statute that established the ICC, the prosecutor is required to ensure that any prosecution is in the interests of the victims as well as of justice. But, to lawyers like the ICC prosecutor, the abstract claims of justice are more vivid than any concrete duty of protection. In this case, justice comes with poisoned arrows.