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ICC Indictment Of A Head Of State Is 'A Political Act'

Stephen Ellis
The decision by the top prosecutor of the International Criminal Court (ICC) to seek the arrest of Sudan's President Omar al-Bashir has elicited a wave of global reaction.

Historian and Africa expert Stephen Ellis of Leiden University tells RFE/RL correspondent Jeremy Bransten that this is no surprise. Indicting a head of state is a political act and it poses some fundamental questions about the ICC: is it an independent court or a political institution? Can it afford to be both? Is there room for an impartial global human-rights court in our current global system of nation-states?

RFE/RL: This week, the prosecutor at the ICC requested an arrest warrant for Sudanese President al-Bashir, for his alleged war crimes in Darfur. The authorities in Khartoum say they won't recognize the decision and other countries, including Russia and China, have raised concerns about the move. Some even say it could plunge Sudan into further chaos and undo years of work to reconcile the country's north and south. How did we get to this point?

Stephen Ellis: Essentially, since 1945 in the world, we've had a system of state sovereignty. So we have 192 or 193 sovereign countries in the world. And legally speaking, they are all deemed to be equal and have the same legal status.

In fact, we know that in recent years, the principle of sovereignty has been eroding for a whole variety of reasons. Some countries find it harder and harder to accept that other sovereign states can have complete control over their internal affairs.

There are all sorts of reasons for this. But one of them is human rights violations. Among many people in the world, the principle that it doesn't matter what one government does to its own citizens has become unacceptable.

RFE/RL: So the principle of national sovereignty clashes with the principle of not allowing human rights atrocities to go unpunished. And the ICC is left in the middle?

Ellis: Events like what happened in Rwanda in 1994, what happened in the Balkans in the 1990s, what's been happening in Darfur in recent years -- these are not things where you can comfortably just sit and say: it's not our problem. These are things that are happening in somebody else's country.

But if you're going to set up tribunals to look at these things, it's important to realize that they cannot solve these problems by punishing the guilty people in the absence of proportionate political considerations.

RFE/RL: In a commentary on the ICC decision, you noted that it could have a negative impact on attempts to strike a political deal with someone like Zimbabwe's President Robert Mugabe, for example. But surely you're not advocating that the ICC issue its indictments based just on political considerations?

Ellis: The only point I'm making is that it has devalued this type of deal, as a diplomatic instrument to be used in similar cases -- in other words, where you have a president who's clinging onto power, who doesn't want to leave office, is afraid of being prosecuted when he leaves office. And what may have turned into quite a handy diplomatic instrument has been rather devalued.

RFE/RL: To date, every individual indicted by the ICC has been from Africa. Some see that as evidence of a form of neocolonialism. But you don't agree. What's the reason, in your view?

Ellis: What we see in Africa is a growing number of what are sometimes called "fragile states," states which aren't really able to perform the functions which the international system -- based as it is on the principle of 193 sovereign states -- requires of them. These are what are sometimes called "fragile states." And [former U.S. Secretary of State] Madeleine Albright used to refer to them as "failed states." And increasingly, therefore, international institutions and major governments are coming under pressure to find various forms of multilateral solutions for practical problems related to the lack of capacity of many African states.

RFE/RL: In a democracy, the judiciary is supposed to be independent and operate without taking orders from politicians. But in a global context, you write in your commentary that "a really effective system of world criminal justice could operate only in tandem with a system of world government." Since that isn't going to happen, is the ICC doomed to either be apolitical but completely ineffective or effective but politicized?

Ellis: The ICC's been with us for 10 years. It has not yet prosecuted anybody and brought the case to a conclusion. As everybody knows, it's not the only international tribunal in existence. We've had the courts on Yugoslavia and Rwanda and the special court on Sierra Leone.

So this is clearly something that is a growing tendency in the world. And I'm not sure that some of our other political arrangements and political institutions have really kept pace with it. This is an indication of a world order in mutation and some of the other institutions associated with the United Nations, for example, but also with the international financial institutions, really need to be reformed to catch up.

RFE/RL: In the meantime, how should the ICC proceed?

Ellis: In the end, I think what it means is that the International Criminal Court itself must be extremely cautious and should not be charged with cases, as has happened in this particular instruction from the Security Council, where the political negotiations associated with a particular case may still have some way to run.