Friday, March 06, 2009
Still, human rights activists would tend to see this arrest as a good start, a step on the way to fully institutionalising the appropriate legal institutions of a liberal world order. The trouble is, of course, that even if this were a desirable outcome, it isn't going to happen. The arrest warrant is unlikely even to result in a trial, unless it is backed by a violent invasion, or perhaps 'extraordinary rendition' if he steps out of the country - which would potentially undermine the legal position of the court. At present, only the government of Sudan has the legal authority to enforce such a warrant. Since Bashir has outlasted most of his opponents, it is unlikely that there would even be a successful coup. And the issue of the warrant has just catastrophically worsened the situation in Sudan, as Bashir has responded by vengefully shutting down the humanitarian organisations and seizing their assets, and banning Sudanese human rights organisations.
What the ICC's prosecutor has actually done here is to endanger a process that, while its end may not be just, could feasibly result in peace. The resulting compromise might be similar to those that produced in a transition in Chile and South Africa. These processes were the outcome of political struggles, not legal battles. They were hardly revolutions and the outcomes hardly satisfactory, but they led to some democratisation and less vicious systems of state rule. State crimes were as a rule not prosecuted by the ensuing governments, as part of the compromise accepted by the opposition. Instead of accountability, they pursued disclosure, as with South Africa's 'Truth and Reconciliation' commission. This was not justice, but it was something. It is not unusual for civil wars to be brought to an end with blanket amnesties, if only to avoid the prolongation of conditions that produce crimes.
There is another problem with the arrest warrant. Even if Bashir stood trial, it probably wouldn't result in imprisonment. As Julie Flint and Alex de Waal point out in today's Guardian, the prosecutor bases his case on lousy evidence, pretending that there is an ongoing genocide and "fantastically" that 5,000 are being killed each month in a bid to eliminate rival tribes. The actual figures for deaths are closer to 150 a month, including combatants, civilians and those of indeterminate status. Given that this is authoritative data, it would undermine any prosecution based on a claim of genocide - thus, even on its own terms, would weaken the very judicial process it is supposed to epitomise. As a result, the ICC judges have already rejected the charges of genocide. What is more, Flint and de Waal add, in attributing the information behind his claims to humanitarian agencies, the prosecutor put relief workers in danger. This is partially the cause of the eviction of various agencies.
The broader point this brings home is the way in which even those whose motives are undoubtedly humanitarian can intervene in situations about which they are either poorly informed or misled, and end up producing precisely the results they wished to avoid. In general, this is a problem that all genuine 'humanitarian interventionists' face. Unless their activity is based on solidarity and on listening to and working alongside those they would help, they are apt to reproduce a kind of colonial attitude that abandons patient solidarity in favour of imposing solutions from without, thus taking risks with the lives and situations of others - the ultimate farcical end of this being shrill demands for military intervention.