Genocide Charge Back on the Table for Bashir

This morning's action at the International Criminal Court (ICC) at The Hague was kind of a big deal -- or was it kind of not?

Last March, the court made a splash with the issuance of arrest warrants for Sudanese President Omar al-Bashir on charges of war crimes and crimes against humanity in Darfur. This morning, the court determined that the legal rationale used to throw out the "genocide" charge was incorrect -- it was a procedural decision, ruling that the pre-trial chamber (three judges) that issued the arrest warrants used the wrong standard of proof in invalidating the genocide charge. Now the chamber will have to reconsider the evidence and decide anew.

On many levels, the decision was hugely important. As Darfur expert and international human rights lawyer Bec Hamilton notes, this decision has implications for the development of international criminal law and any possible future genocide cases brought before the court.

For the advancement of international justice, the fight against impunity for egregious human rights abuses, and upholding the memory and dignity of Bashir's many victims, the fact that the genocide charge might still come through is a victory -- even if the true test is yet to come, when the pre-trial chamber reconsiders its original decision.

But for the current situation in Sudan, the impact of the decision is less clear, or at least less immediate. The existing warrants and the possible new charge give credence and momentum to human rights and other civil society actors seeking to oust their war-mongering president, but the history of international justice efforts in the midst of ongoing conflicts is ambiguous, and gratification delayed. In the cases of Charles Taylor and Slobodan Milosevic, arrests came years after the indictments, after the situations they were involved in had calmed down a bit.

If a genocide charge is added to Bashir's warrant, it won't make much of a difference in the short term, at least for those on the ground -- unless Bashir lashes out again and finds some way to retaliate, like he did last March by expelling 13 major humanitarian aid agencies from Darfur. The question of whether the ICC inhibits peace efforts in Sudan in the shorter term is a serious one, but the question of whether or not the world-wide culture of impunity fuels horrendous violence against civilians is fairly simple: Yes, it does.

Unfortunately, the moral clarity of that answer does nothing to ease the difficult, "realpolitik" quandaries encountered in the pursuit justice against the powerful perpetrators of these crimes.

Photo credit: US Navy.