Justice Should Be Blind, and Know Its Place

Those crying foul over last week's decision by the International Criminal Court (ICC) to reconsider the genocide indictment against Sudanese President Omar al-Bashir would do everyone a favor by saving their angst for a more appropriate time.

The decision delivered last week was not related to the evidence of the case itself, but dealt with a technical application of standards of proof in the issuance of arrest warrants. It is not another example of how "the court is out to get Sudan" -- in a case that is thoroughly and inherently politicized, this ruling is about as apolitical as anything related to the case is going to get.

In an ideal world, all aspects of international criminal justice would be apolitical. Our global system has developed a body of international law, and any individual or nation that violates this law should be prosecuted and punished appropriately. But, of course, we do not live in an ideal world. The ICC itself relies on individual nations and the UN Security Council to refer and facilitate the investigation of cases -- right from the start, consideration of cases is a political decision handed to the court, not an objective choice made by the court. The Darfur situation was referred to the ICC by the UN Security Council, and the prosecutor is doing his job by investigating and attempting to prosecute those responsible for the atrocities committed there.

That said, it often seems that court personalities do little to help build an image of unbiased upholders of the principles of justice and accountability. Throwing prosecution into the mix of already messy conflict situations will be seen as political vengeance (at worst) or a complicating nuisance (at best) by many, the decisions made by prosecutors (at the ICC or other tribunals) in how the pursue these cases and how they interact with the public is often less than helpful. That is, prosecutors too often seem to confuse themselves with peace negotiators.

For instance, David Crane, the chief prosecutor of the Special Court for Sierra Leone, intentionally timed the unsealing of the arrest warrant for Liberian President/War Lord Charles Taylor to "embarrass" him at the opening of Liberia's peace negotiations and weaken its negotiating position. Over the long term, Crane was right, and Taylor was finally arrested two years later, but over the short term the decision caused no small amount of chaos. Even still, this is beside the point: Unless acting in collaboration with peace negotiators, prosecutors should pursue their cases in the manner most likely to apprehend their subjects -- not in a way meant to influence political negotiations of which they are not a direct participant. Similarly, could all of the brew-ha-ha over the ICC case against Bashir, which is being manipulated by the regime and its allies into a grand distraction, been avoided if Chief Prosecutor Luis Moreno Ocampo had chosen a low-profile approach to the case? Maybe sealing the indictments and refraining from grandiose statements to the press?

I personally believe that, over the long term, justice for genocide and crimes against humanity is necessary for victims and survivors, and for ending the culture of impunity that allows these crimes to continue unabated in numerous conflicts across the globe. I believe this will be best achieved by a strategy that seeks to keep the pursuit of international justice, to the greatest extent possible, out of political quagmires -- or at the very least, doesn't open the door and invite the quagmires in.

Photo credit: Veyis Polat.