“Establishing a link between a judicial entity and a political entity…is a condition that does not ensure justice. Legal experts have always spoken of the independence of the judiciary...this is a fact that any first-year law student should know.”
Such were the comments of Sudanese Ambassador Daff-Alla Elhag Ali Osman meant to discredit the work of the International Criminal Court’s (ICC) prosecutor, Luis Moreno Ocampo, who held a meeting with the UN Security Council (UNSC) on Tuesday. Ocampo urged the UNSC to enforce its arrest warrants for Sudanese president Omar Al-Bashir, who is allegedly responsible for war crimes and acts of genocide committed by the Sudanese army and the allied Janjaweed militia against four million civilians. While more heated comments were made, it is this seemingly non-controversial claim that struck me the most as I watched the UNSC members discuss Darfur.
Putting the separation of powers, which is meant to ensure the independence yet cooperation among legislative and executive powers, into perspective, one can claim that the Sudanese ambassador’s comments hold true. After all, what kind of justice is attained if those most politically powerful cannot be held to the same standards of law as the citizens they command are?
In reality, however, Sudan’s judiciary has left Sudanese leaders enjoying immunity. Thus, the R2P norm would warrant intervention to save lives. But is the international system any better at diverging politics from justice?
Let’s remember that the international system deals with states as actors. As long as we are dealing with states with different economic interests, social agendas, and political alliances, then, under the current system, politics is not separated from justice. In the current lamentable state of affairs, what can work?
Sudan, located between the Arab world and the rest of Africa, should have its Darfur situation met with more effective solutions by both the African Union and the Arab League. Unfortunately, the heads of states of the members of these organizations have for the most part supported the Sudanese leader. Furthermore, awareness of the decades-long conflict has recently been sidelined by progress in the more recent ‘Arab Spring’ movement, and even Western coverage of the situation is meager.
Thus far, it is the populations of African countries that have most prominently shown their concern for the situation. The Sudanese Diaspora community and African countries such as Malawi have exhibited their hostility toward Bashir. The African Union summit is to be held in Malawi in July 2012, and that country’s president has already warned that Bashir would be arrested if he were to attend. Sudan is also a member of the Arab League, whose stance has become less hostile toward the ICC; but this slight change of heart is not enough.
At a less formal meeting on Monday, the ICC prosecutor called for an end to aid to Sudan and for countries to stop inviting and receiving Bashir. He also stated that the UNSC has the power to grant permission to any country to dispatch agents to Sudan to arrest Bashir. But this search for justice is politically hindered: it requires the approval of the Security Council with unanimous support from permanent members, a tall order. Ideally, these representatives would put aside their political agendas in their search for “peace and security,” but this is only theoretical. Otherwise, wouldn’t we have a consensus on the Syria situation by now?
Of course political sanctions and ending aid to Sudanese leaders who are bound to purchase weapons with the money was suggested. Ostracizing Bashir and limiting his travel is sure to work, but let’s remember the messy aftermath of foreign intervention against the likes of Saddam Hussein and Qaddafi.
For now, if we are sticking to a system where the UNSC is to dictate the powers of certain states, then enforcing the arrest of Bashir can help solve this problem. If we are to seek an effective international solution, we need the cooperation of states. And although these states come with different political agendas, it is only through their agreement on tools for justices that we can create a more effective solution for the crimes in Darfur.