Security Council May Defer Bashir’s Prosecution (And It’s a Good Thing, Too)

Two months ago, I predicted that the Security Council would not have the votes necessary to defer the ICC’s prosecution of Bashir.  Nostradamus I’m not:

In a last-ditch attempt to prevent ICC judges from issuing an arrest warrant for Bashir in the next few weeks, Bashir’s supporters – the Arab League, the African Union, China and Russia – will use the UN General Assembly, beginning on 23 September, to ask the UN Security Council to block the prosecution. They are supported by two countries which were instrumental in instigating the ICC investigation – permanent Security Council members Britain and France.

Britain and France say privately that the lines of communication with Khartoum are nearing total breakdown. The Sudanese authorities are blocking the work of the 11,000-strong Unamid peacekeeping force and have not handed over two other ICC suspects – government minister Ahmad Harun and militia chief Ali Kushayb – for whom arrest warrants were issued last year.

Foreign Office Minister for Africa Mark Malloch Brown and his French counterpart, Bruno Joubert, are understood to have both travelled to Khartoum recently to suggest a deal under which Bashir could be let off the hook. It would require Khartoum handing over Harun and Kushayb, committing to the peace process in Darfur and southern Sudan, and allowing Unamid to fully deploy.

ICC supporters are predictably outraged.  Human Rights Watch, for example, responded to the news by insisting that “[t]he idea that you can do deals on justice is both short-sighted and a shocking moral abdication on Britain’s part. It can only be damaging to the court. Justice is not a tradeable option. We have seen again and again that Sudan makes empty promises. To think that Sudan is likely to act in good faith is either naive or cynical.”

Although I am sympathetic to HRW’s opinion, I think we need to keep a few things in mind.  First, the Security Council cannot let Bashir “off the hook” — it can only defer his prosecution one year at a time, each new deferral requiring a new Security Council resolution. It is hard to imagine that ICC supporters like the UK and France — and in this case the US, as well — would renew a deferral a year from now if the Sudan did not genuinely commit to the peace process.

Second, I think it is very unlikely that Bashir will agree to Brown and Joubert’s demands.  He would certainly be tempted to sacrifice Harun and Kushayb to save his own skin, but doing so would come at a very high political price.  If you were a high-ranking member of the Sudanese government or military, would you ever trust Bashir again?  After all, you might be his next bargaining chip.  Getting rid of Bashir suddenly becomes a far more attractive option…

Third — and I can’t stress this enough — if the Security Council defers Bashir’s prosecution for a year and the Sudanese government actually lives up to its end of the bargain, the ICC will have succeeded, not failed.  Where was the peace process before the Prosecutor indicted Bashir?  The international community normally pretended Darfur did not exist — and when that was not possible, it was all talk and no action.  It couldn’t even muster the political will to provide the planned peacekeeping mission with enough helicopters.  Those days, however, are now over.  No matter what happens, Darfur will be in the international spotlight for years to come, making it far more difficult for all of the parties concerned — the Security Council members no less than the Sudan itself — to go back on their promises.  And that spotlight is due to one thing and one thing only: Bashir’s indictment.

ICC critics will no doubt spin this latest development as a blow to the ICC’s legitimacy.  Don’t believe them.