Bashir indicted for war crimes, what about Bush, Blair?

Reuters reported that International Criminal Court judges had elected to indict Sudanese President Omar Hassan al-Bashir for war crimes allegedly committed in Darfur. They also confirmed that there was a warrant issued for his arrest, which they later amended to say that the judges were still considering the warrant.

Though allegations of genocide in Sudan keep cropping up in the media, what is not receiving nearly as much attention is the fragile peace deal reached between North and South Sudan in 2005. That arrangement, while far from ideal and constantly being infringed, is far better than the all-out civil war that preceded it. Moreover there is the real fear that should Bashir be arrested the deal might well collapse. As a result the African Union and Arab League are expected to try invoke Article 16 of the Rome Statute which provides that a year’s suspension of the charges can be entertained where the peace process may be jeopardised thereby.

Though I am all in favour of regimes accused of genocide being brought to book and put before the courts, there are a couple of issues that need to be considered:

Firstly if the warrant to arrest Bashir is executed and this leads to an outbreak of war — with enormous casualties — then the ICC courts are leaning too heavily towards being courts of law and not nearly enough towards being courts of equity. In essence, if by insisting upon the strict enforcement of international law, without regard to the consequences of that action, you occasion mass slaughter, then that system is too rigid and causes more harm than it does good.

Secondly the biggest war crime currently on the planet’s books, namely the invasion of Iraq, has for some obscure reason never quite made it to the ICC. Is that perhaps because it’s just not cricket? (Maybe they’re confusing the two ICCs).

As things currently stand there is a heated and ongoing debate regarding whether the invasion of Iraq was launched with or without the explicit authorisation of the United Nations and in accordance with international law. In terms thereof, both camps have been pointing out resolutions passed by inter alia the world body, which half claim as confirmation the war was sanctioned by the UN and which the other half claim constitute proof that there were still issues that had to be addressed before proceeding to invade. Issues which they say had not been dealt with before the invasion was launched.

Seems simple enough to me.

In every criminal case that I have gone to trial with, there has been a prima facie case which if proved against my client would result in his or her conviction. In terms of the ICC case this translates as marking the prosecution down to the team which alleges that there was no legal basis for going to war in Iraq. If that is proved to be true then there are several hundred thousand dead bodies that need to be answered for. The defence to that charge is of course proving that the war was in fact authorised by the UN (mark that down to the team claiming that).

Where is the problem? Bring the charges and let the court decide.

As things stand the body count in Iraq and surrounds is far in excess of anything that Bashir is accused of and yet somehow those charges are hardly receiving anything like the same attention. Why is that? Is there one law for the heads of powerful nations and one for the rest of humanity? What makes the purportedly illegal invasion of Iraq by a superpower and friends more palatable than that of an alleged internal genocide? If anything the fact that the US under Bush was going to invade Iraq regardless of whoever or whatever is far scarier than any conflict confined to national borders. It means pull the tail of the wrong tiger and they will reach out and touch you regardless of whether that attack is justified and sanctioned or not.

Of course the cost of this conflict in terms of human lives and the world economy must not be overlooked either. Where Darfur is localised, Iraq has effected the entire planet and continues to heighten global tension even now. So in real terms we should be examining a court roll headed by one George W Bush and Anthony Blair with Bashir a bit further down the page.

It is this kind of double standard that gets up the noses of many countries around the world. Here we have Bashir whose arrest could set off a powder keg which may now be imminent while Bush and Blair carry on regardless.

If you want countries to take the UN and the ICC seriously you have to start showing that nobody is above the law nor beyond its reach.