Is the ICC going too far?

The International Criminal Court is indicting a sitting head of state, and it is raising many an eyebrow.

Some are calling it counterproductive. Many say indicting, and somehow arresting, Omar al-Bashir, president of Sudan, would derail Sudan’s fragile north-south ceasefire and make peace harder to attain in Darfur. Some say that heads of state are fully protected even from the ICC’s universal jurisdiction by well-established legal codes. Still more say that this is nothing more than Western hegemony, colonialism, white man’s burden and so on.

It is possible that the peace process in Sudan will collapse. My question is, what good has it done so far? Has the suffering ended? Does it look like it might end soon? If not, it is not really a peace process. Peace treaties might be unworkable in Sudan. While I do not believe that the Sudanese government and the Janjaweed are solely to blame in Darfur, they are obviously at the wheel. If anyone can stop the violence, it is al-Bashir. To say that sitting heads of state are protected by international law may be true, although the ICC may represent a break from this convention. There are certain jus cogens laws that override uncertainty in treaties and agreements: the crime of genocide, for instance, cannot simply be rewritten and legalised. And to call all this colonialism is beside the point: if someone orders the killing of thousands of people, what is the difference who punishes him? During the 1990s, critics complained that mostly only Europeans (from the former Yugoslavia) were being targeted, when there were terrible dictators in Africa and Asia too.

In my opinion, even if it is no more than symbolic, this move by the ICC is a welcome step forward in international justice. Like national legal systems, international law tends to develop gradually. Outside of ad hoc tribunals that are set up after wars have ended, there has never been such ability to try anyone of the most heinous crimes possible. The Court can be the final stopgap between the worst human rights abuses and impunity. The ICC is not abusing its authority: if it can gather enough evidence that someone has committed the crimes it prosecutes, it can indict him. Note that the ICC does not indict people for parking tickets: al-Bashir is being persecuted for war crimes and crimes against humanity and, with more evidence, perhaps genocide.

With such a big step, the ICC is setting precedents that indicate justice anywhere is justice everywhere. None of the worst dictators are safe anymore from the long hand of the law.