The Arab League respectfully declined the International Criminal Court’s request the pan-Arab organ arrest Sudan’s president, Omar al-Bashir. The ICC has charged the leader for war crimes — crimes against humanity and genocide — committed in Darfur, and issued an arrest warrant.

The Arab League only has three members who are fully party to the Rome Statute of the ICC, and Jordan is the most powerful of them. The other two are Djibouti and the Comoros islands. This case is shaping up to be a fascinating test for the world’s standing war crimes court.

Sudan, like the United States and Israel, signed on but never ratified it. This means the ICC’s jurisdiction over the crimes in Darfur is based on the idea of universal jurisdiction — the most egregious of crimes can be prosecuted whether they occur in states that are party to the ICC or not. This stems from the fact the case was referred by the United Nations Security Council, which would likely have to take responsibility for arresting al-Bashir if the ICC’s member-states are not up to the task.

Since 2004, Sudan has failed to comply with U.N. Security Council demands “to apprehend and bring to justice” perpetrators of atrocities in Darfur. United Nations Secretary-General said Bashir can avoid prosecution if Sudanese courts try those accused of crimes of war in Darfur, including Bashir himself.

In Darfur, up to 300,000 people have died and 2.7 million have been driven from their homes since rebel groups took up arms against the government in 2003. The conflict stems from shortages in arable land and water leading to a conflict between the nomadic and sedentary tribes of Darfur.

The decrease in arable land can probably be attributed to climate change, although there is debate about the actual causes. It appears the Sudanese government enabled and facilitated this conflict by arming and supporting the Arabic-speaking nomadic herders against the non-Arabic-speaking farmers.

Though a state as weak as Sudan may seem like relatively low bearing fruit — in terms of the scope of the killing and weakness of its alliances with other states — it will be a difficult case for the ICC, politically.

Al-Bashir responded by expelling 13 NGO’s doing relief work in Darfur. Many of them were contracted by the United Nations. It would be a shame if this ended up being the only outcome of the ICC’s efforts.

Failure could devastate the ICC project. While it amassed the evidence for prosecution, it needs al-Bashir present for trial (trying him in absentia is not permitted). Which states will actually intervene to implement such a trial is an open question.

The United States has its hands full and is not very interested in upsetting the Arab League members it needs for its other (pre)occupations in the region — which, by the way, raise their own international war crimes questions.

If the ICC cannot get al-Bashir, it will never get George W. Bush, as it should. Perhaps if it built a case against Bush, it would have more credibility going after al-Bashir, as well. It would seem less to be in the pocket of western powers.

Secretary of State Clinton’s remarks on March 6th did not shed too much light on how far the United States is willing to go to make an ICC prosecution and punishment of al-Bashir possible:

Governments and individuals who either conduct or condone atrocities of any kind, as we have seen year after year in Sudan, have to be held accountable. The ICC has issued an indictment based on a very long investigation, and it is now in a judicial system, properly so. We are going to hope that there is not any increased violence on the part of the government in Khartoum. In the face of this indictment, President Bashir would have a chance to have his day in court. If he believes that the indictment is wrongly charged, he can certainly contest it. But I certainly hope that it does not lead to any additional actions of violence or punishment on the part of the Bashir government.

It sounds like the political equivalent of forming a committee. And it will take years to work out.

Other Security Council players, like China, are vested in the Sudanese regime, or obsessed over their own sphere of influence, namely Russia.

Will any in the Council really go head-to-head with China over a cruel third world despot?

Without the necessary political traction, this could very well backlash. If the ICC cannot effectuate the punishment of weak violators, the hope for international justice against the worst, the strongest, will be nil. Perhaps the world is still not ready for international governance, even though it is needed badly.

Related posts:

1. The Arab League May Do Right…
2. Darfur Crisis to Worsen
3. Gaza is Safe! The Arab League is Convening!
4. The Danger of Misunderstanding Darfur (Not a Satire)
5. Where’s the Save Congo Coalition?