Are France and the UK Already Rolling Over for Bashir?

Last week, I defended deferring the ICC’s investigation of Bashir for a year in exchange for, inter alia, the Sudanese government turning Harun and Kushayb over to the ICC for prosecution.  That would have been a strong demand on the part of France and the UK — one that, I argued, Bashir would be unlikely to accept.

Lest they be accused of actually showing some backbone, Britain and France now appear willing to let the Sudan prosecute Harun and Kushayb itself.

France:

The French foreign ministry called Friday for Sudan to respect the decisions of the ICC concerning the pair, Sudanese humanitarian affairs minister Ahmed Haround and militia chief Ali Kosheib.

But five non-governmental organisations including Amnesty International wrote to French President Nicolas Sarkozy on Thursday saying they feared Paris was planning a compromise that would allow Khartoum to try them in Sudan.

The NGOs warned the French president, who made tackling the Darfur conflict an election pledge, that any compromise on the war crimes probe would “deal a major blow to the credibility and dissuasive power of the international criminal justice system.”

The UK:

The deal, which will be discussed this week at the United Nations General Assembly, would involve Sudan promising to make significant progress with peace talks, supporting the deployment of UN peacekeepers in Darfur, and holding war crimes trials of its own for lesser figures. “We’re not getting involved in negotiations”, said one British official. “There has to be a very substantial change in Sudan’s cooperation.”

If these reports are accurate, the French and British position can charitably be described as a joke.  The Special Criminal Court on the Events in Darfur, which the Sudanese government established in response to the Security Council referral, is not a legitimate alternative to the ICC.  To mention only the SCCED’s most glaring problems, Sudanese criminal law does not embrace command responsibility; provides a wide variety of immunities for members of the military, police, and security forces; and permits defendants to claim the defense of superior orders when they were “bound or authorized to do it by law, or by a legal order issued from a competent authority,” or even if they simply believed that they were “bound our authorized to do so.” (For a complete analysis of the SCCED, see Human Rights Watch’s report here.)

ANNOYED ADDENDUM: Is it too much to ask for reporters who write about the ICC to have at least a basic understanding of how the Court works?  Here is the title of the UK article mentioned above: “Britain to Back Immunity for Sudan President in Bid for Peace.”  As I have explained ad nauseum on this blog, the Security Council cannot “immunize” anyone; it can simply defer an investigation or prosecution one year at a time.  That’s a critical difference — one obviously lost on the reporter who wrote the article.