Briefing: A rocky start for war crimes world court
The arrest warrant for Sudan's president is indicative of the mounting pressure on the International Criminal Court to show results.
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"The ICC system exists to complement domestic jurisdiction – they fit hand in hand," says Mike Newton, a law professor at Vanderbilt University who helped negotiate the document that defines crimes within the court's jurisdiction. "So only the most serious cases, only the crimes of international concern that are of sufficient gravity, are the ones intended to be handled. Everything else is supposed to be handled by domestic courts."Skip to next paragraph
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The court has jurisdiction over cases in which the accused is a national of a member state, the crime took place on the territory of a member state, or the UN Security Council refers a situation to the court. It can only prosecute crimes committed after its inception.
The court has opened cases in Uganda, the Democratic Republic of Congo, Sudan, and the Central African Republic. Critics have called it "white man's justice" since all 12 ICC cases so far have been against African suspects.
Is the ICC's global pursuit of justice actually undermining peace in Africa?
Some argue that ICC action can be counterproductive to ending violence and negotiating peace in certain situations, and they will likely point to Sudan as an example. In response to Mr. Bashir's arrest warrant, Sudan expelled 13 aid agencies from the country, leading some to warn of a possible humanitarian disaster in Darfur, where more than 2 million displaced people depend on humanitarian aid. The African Union warned that the move would hurt Sudan's peace negotiations, and UN Secretary-General Ban Ki Moon said in February that the indictment would distract attention from the peace process. Aid agencies have also voiced fears that the government could retaliate violently against aid workers and peacekeepers on the ground.
Katherine Southwick, a Washington, D.C., lawyer who has worked extensively on African conflict and transitional justice issues, says the arrest warrants issued by the court for rebel leaders in northern Uganda in 2005 drove the leaders from the negotiating table and unleashed further violence on the civilian population.
The leaders are still at large and demand that the arrest warrants be withdrawn before they will negotiate.
"In the context of ongoing conflict or peace processes which are taking place in the background of violence and hostilities – if the peace process is in a mode where you're trying to build confidence and establish communication and connections with the opponent – ICC indictments can have a counterproductive effect, because they could undermine the trust of the people with whom you're trying to speak," Ms. Southwick says.
While she maintains that the indictments were harmful in Uganda, she says they could be helpful as a form of pressure in other situations – such as Sudan – in which attempted negotiations and incentives to end the conflict have not yielded results. "It's a context, case-by-case kind of situation," she says.
The ICC does have the option to defer a case if the UN Security Council requests a delay because of conditions on the ground.
Ms. Sadat denies that ICC arrest warrants derailed the Uganda peace process, and says rebel leaders were not negotiating before the arrest warrants were issued. "If you let the criminal drive the conversation, it just doesn't make sense," she said.