This is what it looks like when an indicted war criminal thumbs his nose at the international community:

Flouting international demands for his arrest on genocide charges, President Omar Hassan al-Bashir of Sudan arrived in Kenya on Friday to participate in a ceremony inaugurating the country’s newly minted constitution…News reports said Mr. Bashir was escorted into Uhuru Park in the Kenyan capital, Nairobi, by the minister of tourism, Najib Balala, to attend the ceremony marking the adoption of the new constitution, supposed to hasten democratic reform in Kenya, a nation generally depicted as pro-Western.

This is problematic on a few of different levels.

First, it represents a very serious challenge to the ICC itself.  The ICC relies on states to execute arrest warrants. If member states like Kenya simply ignore their obligations to the ICC, the court will become irrelevant —  its warrants barely worth the paper on which they are written.  The precedent was actually set when Bashir visited Chad last month, also an ICC member state.  These are the sorts of actions that could fatally undermine the court–which, after all is very young and still trying to establish its place in the pantheon of international law and international institutions.  If its own member states continue to provide free pass to indicted war criminals, they may weaken the court to the point of irrelevance.  Anyone who wants the court to succeed in its mission of punishing and deterring war crimes ought to regard this kind of challenge as a very serious. 

Second, what does Bashir’s international travel say about the Obama administration? Kenya and the United States have warm relations. As David Bosco notes, had the United States wanted to expend significant diplomatic capital, they likely could have stopped the trip.  But they did not.  Viewed in the context of the ongoing administration debate between those in the administration who want to losen pressure on Khartoum in order to secure itscooperation with South Sudan’s independence referendum, and UN Ambassador Susan Rice, who reportedly prefers a more confrontational approach to the Sudanese leadership, it would seem that the engagement crowd is controlling Sudan policy.  (Maybe that is why many activist groups are so eager for the President himself to weigh in, to the point of takign out full page ads in Martha’s Vinyard newspapers?) In the meantime, Bashir  seems to be cracking down on his political opposition and continuing a policy of genocidal destruction in Darfur.

Third, Kenya’s decision to ignore the arrest warrant does not augur well for its own peace and reconcilliation efforts. The ICC actually has an open investigation in Kenya, stemming from the bloody communal riots following a closely disputed election in 2007.  The ICC would probably not have opened this investigation should the Kenyan government followed through with its promise to establish a Special Tribunal. Now, with Kenyan government so openly rejecting their legal obligations to the ICC, one can only suspect that the prosecutor’s office will encounter countless hurdles as its investigations gets off the ground. 

So, all in all, this is a very bad day for the ICC.  

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