On July 14, Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court, sought an arrest warrant for Sudan's President Omar Hassan al-Bashir. The charge is genocide and crimes against humanity in Darfur, where 300,000 people have been killed and 2 million made homeless since February 2003. A week later, former Bosnian Serb leader Radovan Karadzic was arrested after more than 12 years on the run from an arrest warrant from the international criminal tribunal for the former Yugoslavia.
The twin developments have confounded cynics and delighted advocates of international criminal justice. Nevertheless, there are four possible downsides.
First, the logics of peace and justice can be contradictory. Peace is forward-looking, problem-solving and integrative, requiring reconciliation between past enemies within an all-inclusive community. Justice is backward-looking, finger-pointing and retributive, requiring trial and punishment of the perpetrators of past crimes. On July 12 the African Union "expressed its strong conviction the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace." Meeting in an emergency session, the 22-nation Arab League said on July 19 the ICC move had set a dangerous precedent in undermining Sudan's sovereignty.
Bashir has been courted both by U.S. President George W. Bush and U.N. Secretary General Ban Ki Moon in the search for peace and also as an ally in the war on terror. Sudan's U.N. ambassador warns that laying charges against Bashir would destroy international efforts to reach a settlement in Darfur. Senior U.N. officials fret about the impact on the 9,000 strong hybrid United Nations-A.U. peacekeeping force. The security alert has been raised to level four, just short of evacuating all staff; foreign workers not directly involved in security and relief operations have been relocated to safer locations. But what will happen to the two-thirds of Darfur is reliant on international humanitarian assistance?
Second, it is critically important to ensure that the rule-of-law standard is scrupulously observed with regard to the collection and presentation of evidence, the right to cross-examination of witnesses, and all the other procedures of a fair trial. A necessary condition of a fair trial is the possibility of a verdict of innocence. It cannot be the case that "the person will be hanged, but only after a fair trial," for that is the standard of show trials. Because the peak U.N. body is the Security Council, dominated by the five permanent members, it simply cannot ensure that the process of trial and prosecution is always credible, meets international standards on the independence and impartiality of prosecutors and judges, treats the rich and poor, powerful and weak as equals in and before the law, and respects the rights of defendants as well as victims.
Third, in a national system, the prosecutor functions within a well-established structure of state governance, while the ICC, in the words of Judge Hisashi Owada of the World Court, "is not established as part of a centralized system of international governance that can govern the entire international community." In claiming jurisdiction over nationals of countries not members of the court, it displaces the state as the conduit of democratic representation without providing an alternative. Its authority to overturn policy established by national democracies is questionable. Why should it have authority over a constitutionally legitimated democracies such as Japan, Australia, Britain, Canada, India and the United States? And if not over them, can it fairly claim jurisdiction over non-democracies like China, Russia and Sudan?
Perceptions are firming that the ICC is Afrocentric. On July 12, the African Union formally "reiterated the AU's concern with the misuse of indictments against African leaders." Until such time as presidents, prime ministers and generals from some major Western countries are also indicted, convicted and punished for war crimes, the ICC will remain suspect as the vehicle for dispensing biased justice of the strong against the weak.
Fourth, international criminal justice takes away from domestic authorities the options of alternative modes of healing and restitution with a view to reconciliation that puts the traumas of the past firmly in the past. In South Africa, building on the Chilean model, this was done by means of the Truth and Reconciliation Commission. In both cases, the final reports summarized the findings, put them in their proper political and historical contexts and disseminated the facts of past atrocities to their own public and the world.
Criminal law, however effective, cannot replace public or foreign policy. Determining the fate of defeated leaders is primarily a political question, not a judicial one. Truth commissions take a victim-centered approach, help to establish a historical record and contribute to memorializing defining epochs in a nation's history. A criminal trial is not always the best instrument for collective memory and communal healing. It can cause more damage and solidify the very social cleavages that led to genocide and ethnic cleansing. The purely juridical approach to transitional justice traps and suspends communities in past hatreds.
The point is not to deny the choice may be a painful one, the government and the people may be divided on the issue, and the public policy that results may turn out to be flawed and wrong. Rather, the point is that these are profoundly political choices that may involve complex tradeoffs, not primarily and simply legal decisions. For that reason, only the previously traumatized and war-torn societies can make the delicate decisions and painful choices between justice for past misdeeds, political order and stability today, and reconciliation for a common future tomorrow. The ethic of conviction would impose obligations to prosecute people for their past criminal misdeeds to the full extent of the law. The ethic of responsibility imposes the countervailing requirement to judge the wisdom of alternative courses of action with respect to their consequences for social harmony in the present and future.
Against all this, proponents of tough international criminal justice norms and action insist Bashir has never been committed to a political settlement, is a master of the deny, cheat and evade strategy beloved of all tyrants, and responds only to tough action. They also recall that previous indictments of world leaders--Slobodan Milosevic in Serbia, Charles Taylor of Liberia--have ultimately contributed to reaching and consolidating peace. The Security Council could validate this line of argument by using the three-month window of opportunity, before the pretrial chamber responds to Ocampo's request for an arrest warrant, to negotiate a credible and lasting agreement with Bashir while he is under intense international pressure. The Arab League has been woken from its somnolence on Darfur and stung into action to find a "diplomatic" solution to the crisis. Contrary to its protestations, this is a vindication and not a negation of the ICC.
The two isolated and unconnected events represent much needed advance in global governance and offer hope for a permanent reduction in the phenomenon of impunity. But to dismiss the above four sets of concerns as being entirely without merit would jeopardize the achievements, discredit the international criminal justice enterprise, and take us back to the law of the jungle. Instead, for the progressive trend to be consolidated, we must acknowledge the genuineness of the concerns, respond to them and mitigate them as best we can, for example by restructuring the Security Council, making its deliberations more democratic and transparent and its decisions more answerable to the U.N. General Assembly and accountable to the World Court. And by pointing the finger of international criminality at some of the more notorious abuses committed by Western generals, prime ministers and presidents. Not everyone accepts the self-serving dichotomy of the virtuous West and the evil rest.