The (Non-U.S.) ICC Backlash Begins

The (Non-U.S.) ICC Backlash Begins

Like our readers, I am enjoying the terrific and sophisticated discussion on Ben Wittes’ important and highly persuasive book (My short reaction: He’s pretty much right about most things). I hate to interrupt this flow with non-Wittes stuff, but I couldn’t resist a brief note on the growing non-U.S.-related  backlash against the ICC.  

Indeed, just as the U.S. seems to be close to electing a pro-ICC president in Senator Obama (or even in Senator McCain), it is the rest of the world that is beginning to grumble about the ICC.  Today, South Africa(!) and Libya proposed that the U.N. Security Council exercise its ICC Article 16 powers to suspend the investigation of Sudan’s president for a year.  China and Russia appear to be supporting this move, with the U.S.(!), France, and Britain supporting the ICC Prosecutor.  Meanwhile,  Sudan is planning to seek an ICJ opinion on the legality of the UN Security Council’s referral of Sudan to the ICC (see my and Kevin’s posts here on what we both think is a loser argument for Sudan).

And most importantly, perhaps, the reliably pro-ICC NYT is running articles that concede that yes, there could be some downsides to the inevitable march of international justice.  Like Bashir’s arrest warrant resulting in the scuttling of the North-South peace deal in Sudan and sparking potentially even more chaos and violence there.  After all, what exactly does Sudan’s Bashir have to lose now? He’s already facing an arrest for crimes against humanity.

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David Stoelting
David Stoelting

Not sure it’s correct to characterize the use of art. 16 as part of an anti-ICC agenda.  It’s an integral part of the Court’s procedural framework, if the Security Council sees fit to avail itself of this option it should be seen as reinforcing the basic ICC framwork, not undermining it.  That said, I doubt that it will happen.  When the rubber meets the road, will the SC really want to invoke this authority to protect a guy like Bashir?  No way.

Friend of the ICC
Friend of the ICC

Even if you are a friend of the ICC, it is possible do have doubts concerning the Prosecutor’s way of handling matters.

Nobody on this blog has commented upon the fact that Luis Moreno-Ocampo approached the media 10 July 2008 (in LA times 11 July 2008) concerning the application for arrest warrant against al Bashir one day after he lost a case before the ILO administrative tribunal (9 July 2008), whereby the tribunal set aside his decision to sack the whistle-blower Christian Palme for making a complaint that the prosecutor had been guilty of sexual misconduct while on a visit to South Africa.

The strange (1) timing and (2) mode of the Prosecutor’s application for an arrest warrant against al Bashir can be an attempt to divert attention from the ILOAT judgment.

(1) one day after the ILOAT judgment
(2) The application was made public before the PTC received and considered it in contrast to the normal procedure before the ICC

Any takes on this issue?

Benjamin Davis
Benjamin Davis

This is the inevitable battle about political will that the prosecutors are causing to come forward.  You indict a sitting President and people wake up.  Fundamentally, the question will be what all these institutions are willing to do on a second level about Darfur.  Bringing in the Security Council and other international institutions deliberative efforts on this is wonderful!  It forces the attention on the President of Sudan and what he is doing.  Yes, the heat is coming up on the ICC but that is what happens when you lead.  Moreno-Ocampo is basically saying lead, follow or get out of the way to the political classes.



This isn’t even really news to those of us who follow such things. So, various non-party states of questionable democratic and human rights credentials are disturbed by Bashir’s indictment and are registering their displeasure with the Security Council. We’re talking about Libya here, Libya, and South Africa under the fantastically disappointing Thabo Mbeki, who won’t even face down the neighborhood bully. Oh, and non-parties Russia and China, too. Ho hum. Nothing unexpected.