Risky, but worthy

It is now up to the judges of the ICC to write legal history. They must decide on issuing an arrest warrant against El Bashir. If they do so, for the first time in history an acting head of a sovereign state would have to fear being extradited to The Hague. Three years ago, the UN Security Council had assigned Moreno-Ocampo to look into violence in Sudan’s crisis region of Darfur.

Some say, and not without reason, that Moreno-Ocampo is “playing with fire”. That, in any case, was Khartum’s official reaction. The African Union (AU) and the League of Arab States have expressed similar concerns. They blame Moreno-Ocampo of arrogance. Their conventional wisdom is that his initiative is putting at risk the fragile peace process in Darfur. Even UN Secretary-General Ban Ki-moon has expressed this view.

And isn’t indeed much more at stake than simply international law? Isn’t the safety of thousands of soldiers, deployed as peacekeepers on behalf of UN and AU in Sudan, at stake? Their mission is to make sure that people in Darfur must no longer fear for their lives.

It is remembered only too well how long it took the UN to raise its flag in this region of strife and bloodshed. All summed up, the mission was only possible thanks to El Bashir agreeing to peacekeepers’ engagement. Every single soldier in the blue-helmet contingents and every single aid worker owes his or her presence in Sudan to that country’s president. Accordingly, some expertise stress the need to compromise.

It is often said that the road to peace in Darfur goes through Khartum’s presidential palace. Maybe so. But what sort of peace is that? According to UN figures, more than 300,000 people have died in Darfur already, and 2,5 million have been forced to flee. For those who make it to refugee camps, however, the suffering continues. Gangs rape women who are looking for firewood and slaughter men who go out to fetch water. Even staff of aid agencies are attacked, and so are the peacekeepers themselves. In early July, several blue-helmet troops were killed, apparently by militiamen who enjoy the support of El Bashir’s regime.

Ban Ki-moon’s reaction to Moreno-Ocampo’s decision to file for the arrest warrant was telling. The secretary-general is so afraid of Sudan’s ruler that he had all UN officers who are not essential to the Darfur mission evacuated from the country. After all, this was not the first time El Bashir has uttered threats.

Moreno-Ocampo is right not to fall for this president’s peace rhetoric. The prosecutor deserves more than mere respect for spelling out clearly what others merely think. He is going against the grain of those who have been totally incapable of setting an end to the killings in Darfur so far. It is to be hoped that the ICC will issue an arrest warrant and that the UN Security Council will not intervene in such procedural steps. Indeed, that legal measure is likely to have some real impact. El Bashir would become more isolated internationally, and it would become tougher for countries like China or Russia to do business with him. At the domestic level, even a change of the head of state seems possible as any president who may be handed over to the ICC in the course of any trip abroad is a drag on his cabinet. In any case, criticism of El Bashir would gain more attention.

For the legal measures to really work, however, the ICC will need more international support when prosecuting an acting head of state for the first time. Opening this case would signal to the world that no one is immune to prosecution, that crimes are to be dealt with fast, and that international law serves those who need support most: the weak, the downtrodden and the refugees – not only the dead.