If, as is expected, the judges of the International Criminal Court in The Hague confirm the indictment for genocide of the president of Sudan (an indictment having been issued by the prosecutor in July 2008, which requires confirmation by the judges for it to be valid) then the principle of national sovereignty will have been definitively buried in international law. What used to be the uncontested cornerstone of the international system will have become a dead letter – and even a principle associated with the worst abuses of human rights.
My firm view is that the indictment will be so confirmed. (The ruling should come in the next month or so.) In 2007, the ICC judges confirmed a similar indictment against a Sudanese minister who would normally enjoy the same immunity from the jurisdiction of the ICC, whose charter Sudan has not signed, as the head of state does. If the judges have confirmed the indictment against the minister, with the simple reasoning that the ICC has jurisdiction over any country in the world once a case is referred to it by the Security Council of the United Nations (as the situation in Darfur was in 2005) then there is absolutely no reason why they should not do so again for the president himself.
Human rights activist are, of course, eagerly awaiting the confirmation. For many years they have said that the fight for universal human rights is a fight against national sovereignty. On the face of it, it seems obvious that states do not have unlimited rights within their own borders and that they can be legitimately attacked or condemned if they abuse their own citizens. Not only is such behaviour shocking in its own right; it has a specially shocking quality akin to that of sexual abuse committed by fathers against their children. When a state abuses its own citizens, it breaks a very fundamental contract by violating its duty to protect them.
However, just as the original authors of the concept of the rights of man, the French revolutionaries, wanted to supplant the sovereignty of the king and replace it with their own sovereignty instead, so the proclamation that nation states do not have certain rights is in fact a proclamation that someone else, in this case the ICC but often “the international community”, has the right to adjudicate the matter. To say that Sudan does not have the right to commit genocide is a truism; to say that it is committing genocide and that a criminal indictment of the head of state is the best way to achieve peace in Darfur are political judgements.
They may well be true. But if they are then used to justify acts of violence – for instance military intervention in Sudan, or the capture and imprisonment after conviction of the Sudanese president – then such acts of violence, like all state or super-state acts, will themselves be based on sovereign decisions not susceptible to further counter-appeal or condemnation. In law, at least in the law of the countries leading any such attack or in the law of the ICC, they will not be criminal acts but instead acts of justice.
It may seem perverse to rehearse the niceties of constitutional argument in the face of mass death in the civil war in Sudan. But the creation of coercive supranational jurisdictions like that of the ICC – coercive because Sudan, unlike the signatory states of the ICC Charter, has not consented to it – poses two fundamental (and related) political questions. These two questions, indeed, are among the oldest in political philosophy; indeed, one can even say that they express the very essence of politics itself.
The first question is: “Who has the right to rule?” Do international judges in The Hague have the right to say who is a criminal in Sudan? More generally, is it better that international organisations have the right to rule, or should nation-states have this right? The question has to be decided one way or another because although there can be much interpenetration of international and national law, on all sorts of issues, the normal basis for this is consent by the nation-states concerned, who express their consent in the form of treaties. States can consent to very intrusive international regimes, for instance the European Union or the World Trade Organisation, but the ICC represents something qualitatively different – an international regime which exercises power outside the territory of those states which have consented to it.
The second question is, “When is it right to use force?” We normally take it for granted that force is justified to prevent crimes. But to what extent is the criminal law an appropriate conceptual instrument for analysing war? There may, I suppose, be some cases in which it is excusable for a policeman not to act when he sees a crime being committed, but they are marginal exceptions. By contrast, it is very easy to envisage cases in which the cessation of hostilities is preferable to continuing violence in the name of justice. Indeed, peace treaties are often signed between former enemies which precisely contain clauses drawing a line under any future prosecutions.
In the Bosnian civil war (1992-1995) the numerous attempts to broke a peace agreement were attacked by human rights activists in the name of justice. Politicians who accepted their arguments scuppered these agreements saying that aggression should not be rewarded. Eventually, when everyone was exhausted, a peace agreement was signed along the very lines proposed and rejected at the beginning of the conflict. In other words, the war was prolonged needlessly for three years and tens of thousands of people were killed for nothing. “Justice”, in other words, can be a very poor guide in wartime.
It is obvious, then, that I am deeply sceptical about the veracity of the charges against Sudan and about the political usefulness of making them. But what about the first question? My view is that nation-states are a far better forum for adjudicating political questions than international organisations for one simple reason: national governments, even dictatorships, are part of the nation they govern, whereas international organisations are structurally disconnected from the people over whom they wield power. The judges at the ICC will never have to justify or give any account of their decisions to the Sudanese people whereas there is always the possibility that a tyrannical national regime can be overthrown or that it will reform itself.
This basic structural problem causes international organisations to go slightly mad. We are all familiar with the lunatic policies which emerge from the Berlaymont building in Brussels but ideas which emerge from the glass and steel offices of the ICC in The Hague are no less daft and repellent. An excellent example of this was provided before Christmas by David Scheffer, Bill Clinton’s former Ambassador at Large for War Crimes Issues and a firm advocate of military and judicial interventionism. Scheffer wrote (“Rape as genocide”, International Herald Tribune, 4 December 2008) that the centrepiece of the indictment against President Bashir of Sudan for genocide is the claim that Sudanese forces or their proxies are practising mass rape and that this is wiping out ethnic groups. Scheffer writes,
Babies born following the rapes are called ‘Janjaweed babies’ who rarely have a future in the mother’s ethnic group. Infanticides and abandonment of such babies are common. One victim explained, “They kill our males and dilute our blood with rape.”
Just pause for a moment and let the enormity of this sink in. A leading human rights activist, a former diplomat and now a law professor, a man who presumably thinks of himself as the epitome of liberalism, is aligning himself formally, in public, and on a matter of law, with perhaps the most radically tribal conception of human identity one can imagine. He is saying that miscegenation should be regarded as equivalent to murder. He is arguing that a “people” is defined by bloodlines and racial purity, and that a group whose women give birth to miscegenated children is thereby being eradicated.
Since the signature of the genocide convention in 1948, the charge of genocide has been ridiculously abused, for instance in 1988 when a former Bolivian president was convicted of genocide on the basis of a shoot-out which killed twenty people. The “rape as genocide” charge, however, which the ICC prosecutor has brought and which David Scheffer supports, puts even these in the shade. It draws its inspiration not from the legal principles we associate with the Nuremberg trials of 1945 but instead from those formulated in the so-called Nuremberg race laws of 1935, which also legislated against miscegenation. What an ironic turn of events.