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Sudan's Day in Court

The International Criminal Court's attempt to bring Sudanese president Omar al-Bashir to justice backfires.

11:00 PM, Mar 5, 2009 • By JOSEPH LOCONTE
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Brushing aside warnings of retaliations against vulnerable refugees, the International Criminal Court issued an arrest warrant this week for Sudanese president Omar al-Bashir for atrocities committed in Darfur. A three-judge panel charged Bashir with war crimes and crimes against humanity for playing "an essential role" in the murder, rape, torture, and displacement of thousands of civilians. Although it is important that an international body has moved against the Sudanese leader--a radical Islamist who has waged war against Christians in the south and Muslims who resist his rule in the north--the court's action is fraught with problems. Already it has exposed the moral liabilities of an international tribunal that lacks any means of enforcement.

For eight months European leaders have pushed for the arrest warrant against the Sudanese president, the first aimed at a sitting head of state. The Economist magazine called it "a pretty clear victory for international human-rights activists." Richard Dicker of Human Rights Watch said the decision "has made Omar al-Bashir a wanted man." Nicholas Kristof, columnist for the New York Times and Pulitzer-prize winner for his commentary on Sudan, saw the ruling as a "step toward accountability and deterrence." Fouad Hikmat of the International Crisis Group expected the court's action to prod the government "to engage the international community a bit more."

ICC enthusiasts should put away the champagne for now. Within minutes of the court's announcement, thousands gathered in Khartoum, the Sudanese capital, to denounce the decision. "We are telling the colonialists we are not succumbing," Bashir said. "We are not submitting. We will not kneel." Within hours, Bashir met with leaders of several humanitarian groups and ordered them to leave the country. Organizations such as Oxfam and Doctors Without Borders--which provide food and medical care for thousands of refugees in Darfur--are apparently being forced out of the region.

As aid workers explain, the Sudanese government despises international relief agencies operating in Darfur. Aid agencies have performed heroic work in keeping alive the very people Bashir and his janjaweed militias have tried to exterminate. Some groups have offered evidence of government-backed raids on refugee camps, embarrassing the regime. Equally important, the physical presence of aid workers has helped discourage attacks on civilians from government forces. "One of the humanitarian services we provide is protection through pressure," a relief worker told me. "That pressure through presence is suddenly gone, and there will be a lot of people vulnerable to attack."

Quite a lot, in fact. Since the civil war erupted in 2003, at least 300,000 people have died and about 2.7 million have been displaced. They live as internal refugees or in camps in Chad and the Central African Republic. They struggle to survive with inadequate sanitation, health care, and food. Women and young girls are often the victims of sexual assault. Humanitarian convoys already face attacks from soldiers, militias, bandits, and rebels. If relief organizations are kicked out of the area, thousands of civilian deaths could follow.

This is what political theorists mean by moral hazard: When a political decision, however just in intent, carries consequences that threaten to frustrate justice and further endanger innocent lives. Some diplomats and relief workers--let's call them moral realists--warned against the ICC's ruling for months. They predicted that Bashir would use the decision as a political rallying cry. They expected the government to expel aid organizations.

It appears that the realists were right. Utopian hopes in the irrepressible power of international edicts are colliding with stubborn facts on the ground. The court has no way to enforce its decisions, no police or military to arrest the accused. The Sudanese government has vowed to ignore the warrant. Although 108 countries are parties to the 2002 Rome Statute that established the court--the United States is not a signatory--many have little interest in apprehending Bashir if he were to set foot on their soil. African Union peacekeepers in Darfur, unable to offer much protection to refugees, have no authority to arrest the president. The international community shows no stomach for military action, such as protecting the "no fly" zones over refugee camps that are being bombed by Sudanese planes.