The Easy Target

The backlash against the attempt of the International Criminal Court (ICC) to arrest Omar al-Bashir on charges of genocide and crimes against humanity has begun. Whether today's mass protest in Sudan was an authentic "grass roots" movement or carefully orchestrated political theater, the event was as ironic as the decision of our State Department to comment on the ICC action. Consider the beginning of the report for Reuters from Khartoum by Opheera McDoom:

Thousands of protesters chanting "Down, Down USA!" rallied in Khartoum on Sunday after reports that the International Criminal Court (ICC) may seek the arrest of Sudan's president for alleged war crimes.

Consider, also, the text of an "official statement," which the protesters plan to deliver to the United Nations:

The ICC does just what the European Union, the United States of America and Israel tell it to do.

Finally, it terms of the source of the protest, consider this remark by Awad Ahmed, who happens to work for the Agriculture Ministry:

The Sudanese people are all rejecting this -- this is America targeting Sudan. We will not send Bashir. We would die first.

The irony, of course, is that the United States has still not ratified its membership in the ICC system and that its stridently proclaimed tough stand against ratification may have even been one of the provoking causes of the 9/11 attack. Even more ironic is that the don't-tell-us-what-to-do grounds for the Sudanese protest are precisely the basis for the American rejection of ICC membership. To further add to the irony, while the American rejection may have been motivated (at least in part) by a desire of our ruling class to protect one of its own (Henry Kissinger) from similar prosecution for war crimes (on the basis of charges that the government of Cambodia had expressed a desire to file), that same rejection may now protect the highest-ranking officials (including the one at whose desk the buck stops) from the same prosecution over their "adventurism" in Iraq.

Rather than dwelling on these ironies, however, we should appreciate the extent to which they demonstrate that the very concept of an international judiciary system is as fragile as our own government was in the decades immediately following the ratification of our Constitution. That fragility can be seen in a particularly brittle (and thus fragile) approach to international justice that the philosopher Bertrand Russell proposed about a century ago. With an almost intoxicated belief in the soundness of logical positivism, Russell recommended that the entire world form a single government, in which all judicial questions would be decided on the basis of an appropriate logical calculus. Even Immanuel Kant, who tried to formulate systems for explaining how we think and act, recognized that such judgments could never be reduced to purely objective terms; but, in Russell's History of Western Philosophy, there is at least a faint suggestion that Kant's results suffered from lack of sufficient scientific knowledge of the physical world (this in spite of the fact that he wrote this book after quantum physics had developed to a point of demonstrating the limits of such scientific knowledge and Kurt Gödel had demonstrated the limits of logical calculi).

It would be fair to say that, over the last one hundred years, our appreciation of the social world has improved considerably; but it would also be fair to say that appreciation does not always lead to understanding. Since the ratification of our Constitution, the United States has evolved a complex system through which grievances may be voiced, prosecuted, and judged; but the system over which George Washington presided is a pale shadow of the one upon which we now all depend for assurances of fair judgment. The fact that the members of the European Union have yet to agree on anything as general as their own constitution should warn us that an international judiciary system recognized as fair by all is an extremely difficult (if not impossible) goal. This is, by no means, meant to excuse the official Sudanese reaction to the ICC; but, if Sudan has decided that the Arab League would constitute a fairer venue for judgment, it may be in the best interests of the ICC to encourage Arab League involvement. This would be analogous to deferring judicial review by our Supreme Court until a case has been examined at the state (and perhaps local) level. If the victims in this case (those in or displaced from Darfur or representatives of the United Nations peace force) feel that the Arab League judgment was unfairly biased (say, because the victims were not Muslim), that would probably then be the time to appeal to the higher institution of the ICC.