Book Review: ‘East West Street: On the Origins of Genocide and Crimes against Humanity’ by Philippe Sands

We are delighted to welcome this guest book review from Samantha Williams, PhD candidate at the CCJHR and School of Law, UCC.

East West Street: On the Origins of Genocide and Crimes against Humanity by Philippe Sands, Weidenfeld, 437 pp, £20.00, May 2016, ISBN 978 1 4746 0190 0

Within an ever-expanding body of literature concerning World War II (WWII), Philippe Sands’ latest publication is a welcome and unexpected addition. Flipping the genre on its head, East West Street is a beautifully crafted text, focusing on a series of extraordinary historical coincidences.

Professor Philippe Sands QC, a practising barrister and Professor of International Law at University College London, is well known internationally as a leading scholar of genocide and crimes against humanity. As a barrister, working from Matrix Chambers, he was involved in the creation of the International Criminal Court, as well as a number of high-profile cases relating to accusations of genocide.

East West Street weaves together a collective narrative which is focused on the interrelated lives of four men, Hersch Lauterpacht, Raphael Lemkin, Hans Frank and Leon Bucholz, the latter, Sands’ maternal grandfather.  Part family biography, part history, part memoir and with a hearty dash of legal thriller – Sands serves as both tour guide and detective as he effortlessly weaves together several interconnected narratives using the town of Lviv in Ukraine as a starting point. Representing a departure from his previous catalogue of academic works, Sands draws the reader into a work which is best described in his own words as “a tale of four men, two legal norms, one trial and one city.”

Through the first part of the book, Sands leads us through the lives of these four men with a keen and eagle-like precision, poring over the “muck of evidence” with the same dogged perseverance that he does when filling in gaps in his own family history. Forever delving and going to great lengths to piece together the background and context within the interconnecting lives of these four men.

The role of the infamous Nazi lawyer Hans Frank, the man responsible for the decrees instructing the rounding up and mass murder of Polish-Jews, is juxtaposed with Raphael Lemkin and Hersch Lauterpacht, two forefathers of international law and creators of the terms “genocide” and “crimes against humanity”. Frank is also the man also responsible for the murder of the entire families of Lauterpacht, Lemkin and Buchholz – all of whom were wiped out in places now seared into the pages of history, Treblinka, Warsaw and Auschwitz. It is no surprise that Sands chose to bookend the text with the trial of the Nazi war criminals – a stark reminder that beyond their similar upbringing in the town of Lviv the narrative of the story is intrinsically interwoven with the harsh realities of the Holocaust.

It is arguably this perseverance and unwavering determination which is most engaging and thrilling for the reader, who at times may be mistaken for forgetting that the emerging story is not in fact a thrilling detective story, but instead an all-absorbing mini-biography of Lauterpacht, Lemkin and Buccholz. Such detailed and masterfully executed detective work is the cornerstone which supports the magic of Sands’ work. This perseverance and evidence-based writing is where Sands’ strength as both a practitioner and as a writer come to fruition.

The second half of the book moves away from its biographical starting point to compare and contrast the conceptions of crimes against humanity and genocide and the opinions of the men who drafted these. For Lauterpacht, it was individuals who ought to be the focus of such a new crime and thus, crimes against humanity was conceived. For Lemkin, the atrocities of Nazi Germany had been aimed at individuals as members of distinct ethnic groups, Roma, Jews, and minorities in general – so for him this new crime needed to lend a previously unseen level of protection to such groups, thus genocide was created.

The apparently conflicting basis for these two new crimes are examined in depth within the book as Sands highlights both the thought process and advocacy that both men had to go through to have their terms included in the Nuremberg judgments. For Lemkin, this was much more of an uphill struggle than for Lauterpacht – Sands credits this fight for legitimacy as attributable to both Lemkin’s rather alienating personality and the wariness of the prosecutors to adopt such a radical new take on a state’s responsibility. Genocide signaled a clear departure from the ideas of state sovereignty, that a state can do whatever it wishes to those under its sovereign power and within its borders. While such reasoning is artfully explored, as one would expect of a barrister and Professor of International Law, Sands’ preference towards Lauterpacht is markedly clear:

I was instinctively sympathetic towards Lauterpacht’s view, which was motivated by a desire to reinforce the protection of each individual, irrespective of which group he or she happened to belong to, to limit the potent force of tribalism, not reinforce it … It was a rational, enlightened view.

This clearly marked bias serves somewhat to detract from the larger analysis of these two great men and the norms which they constructed. In a recent event held at UCL, On Law, Life and Literature, Sands was asked about such leanings, and answered frankly, arguing that the crime of genocide is now part of a hierarchy of international law norms, and its usage is often inexplicably (and perhaps mistakenly) favoured over crimes against humanity. For Sands, as both a practitioner and as an academic, this amounts to a huge oversight – “a direct consequence of the idea of a group having been elevated higher than that of the individual.”

This elevation is ultimately troubling for Sands as it “downplays the significant role that individuals play within international law.” However, in doing so it is suggested here that Sands somewhat oversimplifies the key differences between Lauterpacht and Lemkin’s approach to this rebirth of international law. Sands perhaps undersells the significance of what Lemkin was envisioning in his attempts to bring focus back to a renaissance or reimagining of previous incarnations of minority rights safeguards, such as the Polish Minority Treaty, also known as the ‘Little Versailles Treaty.’

This bias is also clear further on in the narrative when Sands notes that Lemkin’s approach was always likely to fail to win over the imaginations of the Allied Prosecutors. Sands attributes this to Lemkin’s flaws as an individual and general ‘unlikeability’. However, it is suggested that this was more likely to be due to the focus of his newly conceived idea. Particularly, as genocide’s focus was to protect the rights of minority groups from a repeat of the horrific atrocities of Nazi Germany.

A quick overview of the historical the context of the time, an era of civil unrest under Jim Crowe in America and the rise of unrest in the Colonies of the British Empire, highlights the dangerous that the idea of genocide with its protections afforded specifically to groups, could have caused. Specifically, as historically both the US and most notably the UK had treated minority groups in a way that the newly emerging crime of genocide could be applied to. Such opposition suggests the Lemkin’s idea might have been getting at something important and was ultimately widely applicable to the acts of the Allied Powers both prior to and post-WWII. Sands’ diminishing of historical context here suggests a slight oversight of the intrinsically institutionalised nature of ethnic and racial prejudice in most European States at that time.

It is also worth noting that weaving a personal, biographical story with an exploration of important legal norms and the figures behind these placed certain limitations upon the book and its relevance. Furthermore, Sands’ preferential treatment of Lauterpacht over the “less likeable” and “wayward,” Lemkin leads the book to descend dangerously close to hero worship (a point noted by Mark Mazower in his review of East West Street). However, such slight oversights ultimately do not detract significantly from what is a well-written and immaculately researched work.

In conclusion, East West Street is an impeccably detailed read, set within the historical context in a way which elevates it from other works focussed on the intricacies of international law and WWII literature. Part historical detective story, part family history, part legal thriller, Sands guides with a gentle hand and highly descriptive writing between past and present – as the stories of the men unfold in parallel. Unravelling this personal story, yet simultaneously weaving this into the lives of Lemkin and Lauterpacht – Sands keeps the reader engrossed throughout – even when discussing in great analytical detail certain elements of the Nuremberg Trials. For this, East West Street undoubtedly deserves the acclaim and literary accolades it has received since its publication in the summer of 2016. Yet one would expect nothing less from Sands.

The Value of the Charles Taylor Judgment, by Fiona O’Regan

On Thursday 26 April 2012, Charles Taylor, former President of Liberia was convicted of aiding and abetting eleven counts of war crimes and crimes against humanity by the Special Court for Sierra Leone (SCSL).  Among the crimes Taylor was convicted of were murder, rape, recruitment and use of child soldiers, pillage, enslavement and acts of terrorism (judgment summary available here).The Taylor judgment is historic because it marks the first occasion since Nuremberg that a sitting or former head of state was convicted by an international criminal court. 

The Taylor conviction is the latest in a series of significant achievements for the SCSL.  The Court has in the past drawn praise for being the first international court to convict individuals of recruitment and use of child soldiers as well as, in the same case (the AFRC case), recognise the crime of forced marriage.  In addition, the SCSL has been relatively efficient and managed admirably with its far more limited resources in contrast to the heavily financially supported ad-hoc tribunals who have attracted consistent criticism for their perceived wastefulness.  The Court has also developed a comprehensive outreach programme and engaged in effective capacity building, through employing a significant number of native Sierra Leoneans in its activities.  Furthermore, the conclusion of the Taylor case will mark the final chapter in the work of the SCSL, so that it shall become the first of the major international criminal tribunals of the modern era to complete its mandate.

However, the Taylor judgment is problematic in certain respects.  Firstly, Taylor has only been convicted of crimes committed in connection to the Sierra Leone conflict and thus, the myriad of crimes he is linked to in his native Liberia look likely to remain unpunished.  In addition, Taylor has been convicted of aiding and abetting the crimes by the SCSL, a less serious mode of liability than the Prosecutor would have hoped of securing the convictions under.  Finally, many of those directly responsible for the crimes Taylor was convicted of are unlikely to be brought to justice, which for many of the victims of these crimes is unacceptable and mars the significance of the Taylor judgment. Each of these factors contributes to an image of what J. Peter Pham, in a New York Times Op-ed, calls “incomplete justice” in the Taylor case and “demonstrates the severe limitations of an international criminal justice system that is insufficient to deter future atrocities”.  Thus, whilst Charles Taylor has been found guilty by an international criminal court, the limited scope of this accountability and the impunity gaps it exposes, detracts from the impact such a judgment could have had had the case been more all-encompassing.

Nevertheless, the value of the Taylor verdict should not be dismissed.  International criminal justice by its nature will always be limited and imperfect, considering the amount of potential defendants, the restricted resources and the complex political difficulties that surround the task of bringing individuals to justice.   However, these challenges do not mean that constructive results cannot emerge from this flawed system.  In particular, international criminal trials possess a considerable expressivist potential, whereby the message sending ability of the system can help increase respect for the rule of law as well as facilitate the creation of a historical record of the relevant atrocities.  As Drumbl posits, “International trials have a better chance of becoming the kinds of “popular trials” that define a debate, remind us of the content and value of law, or serve as intergenerational “signposts” in history”.  The classic example of this powerful function is of course the Nuremberg trials, which for all their flaws, still serve as a source of inspiration to those engaged in international justice today.

The Taylor judgment may also carry some of this expressivist potential.  Although the case may not have been ideal, it still represents an exceptional occurrence: a once very powerful figure being held to account by the international community for very serious crimes. According to the Prosecutor in the case, Brenda J. Hollis, the judgment “reinforces the new reality, that Heads of State will be held to account for war crimes and other international crimes,” and “affirms that with leadership comes not just power and authority, but also responsibility and accountability. No person, no matter how powerful, is above the law.” Thus, this conviction ought to send a powerful message to other errant heads of state engaged in similar crimes that impunity is no longer guaranteed.  The limitations of the case may reduce the potency of this message, but they are unlikely to diminish it completely and thus, the Taylor judgment could yet become a beacon of hope to victims of similar leaders that one day these individuals (such as Laurent Gbagbo and Omar Hassan Ahmad Al Bashir) may yet be brought to justice.

The Denial of Humanitarian Assistance: The case of Syria

The International Committee of the Red Cross (ICRC) has now entered the sixth day of negotiations with the Syrian authorities over allowing access for humanitarian assistance to the neighbourhood of Baba Amr in Homs. The Syrian authorities have cited security concerns for the denial of access to the ICRC and the Syrian Red Crescent, claiming that the neighbourhood is booby trapped and landmined. Yet the UN Secretary General, Ban Ki-Moon, has stated that he has received “grisly reports” of summary executions and torture by Syrian troops, and it is alleged that the delay in allowing access is so that Syrian forces can hide evidence of such killings. Meanwhile, the Irish authorities have pledged €500,000 in humanitarian assistance toSyria, with Tánaiste and Minister for Foreign Affairs Eamon Gilmore, highlighting the importance of immediate and unhindered access for all humanitarian agencies, and the danger of any militarisation of humanitarian assistance.

The Right to Humanitarian Assistance under IHL

Humanitarian access, particularly in the midst of an armed conflict, has long been a contentious issue. Nevertheless, while the extent of a binding international legal right to humanitarian assistance remains contested, Geneva Convention IV relative to the Protection of Civilian Persons in Time of War does provide certain rights to humanitarian assistance for civilian populations during armed conflicts. For example, Article 23 provides that the entire population in a conflict zone is entitled to receive medical supplies and objects necessary for religious worship; while particularly vulnerable groups such as children under fifteen, expectant mothers and maternity cases are additionally entitled to essential foodstuffs, clothing and tonics. The forms of assistance allowable in international armed conflicts were expanded via Article 70 of Additional Protocol I in 1977 to include clothing, bedding, shelter and other supplies necessary for the survival of the civilian population, plus objects necessary for religious worship.

While ICRC acknowledges that military considerations are part and parcel of decisions surrounding the provision of humanitarian assistance to civilians in conflict zones, GV IV also stipulates that civilian populations are entitled to a minimum level of protection against some of the consequences of war, with key protections in place for hospitals and “neutralised zones”. Particularly vulnerable groups such as the sick and wounded or the elderly should also receive explicit protection.

Furthermore, Article 70 API utilises non-discretionary language: “If the civilian population … is not adequately provided …, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken” (emphasis added). Nevertheless, despite this mandatory language, Article 70 then introduces certain limitations on the provision of this humanitarian assistance. First and foremost, the provision that humanitarian assistance must be “subject to the agreement of the Parties concerned”. Additionally, the Parties have the right to prescribe technical arrangements, including search procedures, under which the passage of humanitarian supplies are permitted. Meanwhile, although Article 71 API provides that humanitarian personnel shall be respected and protected in the discharge of their functions, it also stresses that “[u]nder no circumstances may relief personnel exceed the terms of their mission … In particular they shall take account of the security requirements of the Party in whose territory they are carrying out their duties”.

These provisions reflect the recognition throughout IHL that while parties to a conflict have explicit responsibilities towards civilians under their control, individual rights may be legitimately constrained, either for military necessity, security reasons or due to insufficient resources.

Considering that the Syrian authorities have argued security concerns for the denial of access for the ICRC and Syrian Red Crescent, at face value this might imply that they are justified in their current stance. Indeed, internal armed conflicts present further difficulties for humanitarian access. Additional Protocol II does not contain the same level of detail regarding relief activities for civilian populations, and Article 18(1) APII provides only a right for humanitarian agencies such as the Red Cross to offer their services for the victims of internal armed conflicts. By implication, such an offer may be refused by a Party to the conflict. Yet, Article 18(2) once again uses mandatory language in proscribing that “[i]f the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival … relief actions for the civilian population … shall be undertaken”.

Furthermore, the provisions of humane treatment set out in Common Article 3 apply in all internal armed conflicts, and the ICRC has determined that the provision of humanitarian assistance to civilian populations is part of customary international law. Under Customary International Law Rule 55, the parties to a conflict must allow and facilitate the rapid and unimpeded passage of humanitarian relief for civilians in need, while Rule 56 states that Parties to a conflict must ensure the freedom of movement of authorised humanitarian personnel. Crucially, only in case of imperative military necessity may their movements be temporarily restricted.

The Denial of Humanitarian Assistance as an International Crime

During the negotiations for the establishment of the International Criminal Court (ICC), Sergio Vieira de Mello submitted a communication to the Diplomatic Conference on behalf of the UN Inter-Agency Standing Committee which argued that the wilful denial of humanitarian assistance committed in both international and internal armed conflicts, should be included in the jurisdiction of the Court. While the Rome Statute did not create a specific crime of the denial of humanitarian assistance, the non-provision of humanitarian assistance could be classified as a crime against humanity. As per Article 7 of the Rome Statute, a crime against humanity includes acts committed as part of a widespread or systematic attack against any civilian population that results in murder, extermination, persecution, or other inhumane acts causing great suffering or serious injury to body or to mental or physical health. Indeed, the ICC has noted that “extermination” covers inflicting conditions that destroy life and has specifically highlighted the deprivation of access to food and medicine in this context. Furthermore, Additional Protocols I and II prohibit the deliberate starvation of civilians as a method of warfare, and the ICRC Customary International Law Study has concluded that this prohibition is also part of customary international law in both international and non-international armed conflicts.

So if it is part of a widespread or systematic policy which is considered an attack on a civilian population, the deliberate denial of humanitarian assistance and resultant suffering and potential deaths may amount to a crime against humanity. It is therefore possible for prosecutions under international criminal law to be initiated if evidence comes to light that a deliberate policy of denial of humanitarian assistance has taken place in breach of Syria’s international obligations. Individuals who planned and implemented policies that resulted in the denial of humanitarian assistance could therefore face either national or international criminal charges. The consequential threat of punishment for actions that result in denial of assistance may help ensure not just the mobilisation of national resources for the affected populations, but facilitate access by international agencies to those in need.

On this basis, it would seem that the criminalisation of actions that lead to the wilful denial of humanitarian assistance can provide a key tool in negotiations on humanitarian access in situations of armed conflict. However, Médecins Sans Frontières has noted that:

“… it is the threat of punishment, rather than punishment itself, that might potentially have a deterrent effect. Once the latter has been handed down, the criminal has nothing left to lose. Within a week of the ICC’s arrest warrant for the Sudanese head of state [President Omar al-Bashir], the Khartoum government committed a new series of war crimes, ranging from blocking humanitarian aid to kidnapping humanitarian workers, including the looting and use by Sudanese security forces of MSF’s vehicles, communications devices, and personal identification. So while the threat of charges could act as an incentive in negotiations between the international community and the Sudanese government, the announcement of charges against the Sudanese president drove him into a corner … As far as relying on the fear of international criminal charges to protect humanitarian relief efforts is concerned, we can only stress that it is a risky bet.”

If this is the case, then the ICC should be cautious in bringing charges against Syrian officials at this stage when the conflict is ongoing, but rather should be actively pursuing credible allegations of crimes within the Rome Statute for potential prosecutions in the future. Meanwhile, in the absence of a unified approach from the UN Security Council, the international community must increase the diplomatic and political pressure on the Syrian authorities to respect their international commitments to provide and facilitate humanitarian assistance to all civilian populations.

First Khmer Rouge Trial finally underway

The international media is full of news reports today announcing that the first Khmer Rouge trial is finally underway. After years of controversy and corruption scandals prosecutors at the ECCC have today started their case against Kaing Guek Eav, known as Comrade Duch. As I have previously blogged here Duch ran the notorious Toul Sleng prison camp in Phnom Penh where many thousands of Cambodians were tortured and executed.

The opening of today’s substantive proceedings has been welcomed by all, including the many critics of the ECCC. It is of course hard to be opposed to the prosecution of those alleged to have committed crime against humanity and war crimes. However, even as those welcomes come, the criticisms and general concern about the operation of the ECCC continue. Brittis Edman, Amnesty International’s Cambodia researcher reflected this tension in the organisations press statement on the hearing: “The Cambodian people will finally see one of the most notorious Khmer Rouge leaders face trial. But many more need to face the court to really deliver justice to the millions of victims of these horrific crimes.”

The decision of the ECCC to prosecute only five suspects has been widely criticised. Yet when Robert Petit, the international Co-Prosecutor wanted to send six additional names to the investigating judges for further examination his Cambodian counterpart, Chea Leang, objected on the grounds that the stability of the country might be affected. No action has since been taken on those six names.

Whilst the Cambodian officials may claim that further prosecutions would not be beneficial to the country, a recent survey carried out by the Documentation Center of Cambodia found in fact that a small majority of Cambodians polled felt that the court should look at further suspects. Overall 56.8% were in favour, whilst amongst the younger people asked 67.5% supported further investigations.

In the meantime, the delays in progressing the other prosecutions clearly raises a concern that Comrade Duch may end up being the only trial the ECCC ever actually completes. The three defendants in the second case Noun Chea, Khieu Samphan and Ieng Thirithis are all suffering from health problems and may never make it to court.

So the excitement being generated in the international media is for a trial where the defendant has already confessed his guilt and expressed his remorse for his actions. According to his lawyer Francois Roux “Duch wishes to ask forgiveness from the victims but also from the Cambodian people. He will do so publicly. This is the very least he owes the victims.”

Ultimately what can be expected from this first test of the ECCC? Clearly Duch’s evidence will provide a valuable public record of the operation of Toul Sleng, and many are hoping that his evidence will provide some answers to the questions concerning what the Khmer Rouge did to their compatriots and why. His evidence may also provide some powerful testimony in relation to the other defendants due to be prosecuted by the ECCC. Cambodians certainly are aware of the moment of history and powerful potential the trial offers, as many queued to attend the first day of hearings.
Links to some of the coverage:

ICC issues arrest warrant against Sudan president

The International Criminal Court (ICC) today issued an arrest warrant and charged the Sudanese head of state Omar al-Bashir with war crimes and crimes against humanity arising out of the conflict in Darfur. The judges dismissed the prosecution’s most contentious charge of genocide which arose out of allegations that Bashir had tried to wipe out three non-Arab ethnic groups.This is the first time the ICC has issued an arrest warrant against a sitting head of state.An aide to President Bashir was quoted in the Guardian as describing the decision as “neo-colonialism”; whilst protesters took to the streets of the Sudanese capital, Khartoum.

The ICC, in its press release, reported that

“The Chamber found that Omar al Bashir, as the de jure and de facto President of Sudan and Commander-in-Chief of the Sudanese Armed Forces, is suspected of having coordinated the design and implementation of the counter-insurgency campaign. In the alternative, it also found that there are reasonable grounds to believe that he was in control of all branches of the “apparatus” of the State of Sudan and used such control to secure the implementation of the counter-insurgency campaign.”

Human rights groups, including Amnesty International and Human Rights Watch, welcomed the decision but there has been disquiet amongst those who have been trying to broker peace talks in the area. Arab states and the African Union had argued for a postponement of the charges to allow Bashir a final chance to end the Darfur conflict while not under duress.

Sudan does not recognise the ICC, and Bashir said the court could “eat” the arrest warrant, which he described as a western plot to hinder Sudan’s development. Despite this, the case will raise questions about his political future.

Khmer Rouge trial date announced

The first trial of a Khmer Rouge leader is due to start 17th February 2009. Kaing Guek Eav, better known as Comrade Duch is facing charges of crimes against humanity and war crimes. He was in charge of the infamous Toul Sleng prison where detainees were tortured and killed and is the first of five detainees to be sent for trial.

It is reported by officials that Duch, who has been detained since 1999 and has previously admitted his guilt, has been cooperating with prosecutors and is willing to testify in court. The testimony may well reveal significant information about how the Khmer Rouge leadership made their decisions during their time in power.

For the Extraordinary Chambers in the Courts of Cambodia (ECCC), this will be first real move towards prosecuting Khmer Rouge leadership. Whilst the trial may finally draw some attention away from corruption scandals and delays that have dogged the Court it is likely that the trial process will face further delays as the court takes it first steps towards its real work.

The hearing in February will simply examine the lists of witnesses and rule the important question of the extent to which “civil parties” can participate in the trial. The question of how far the victims of the Khmer Rouge will be able to have their voices heard in this and future trials is important and still to be fully resolved. In a decision in March last year the pre-trial chamber of the ECCC ruled that victims should be allowed to participate in court proceedings. However, in subsequent rulings the ECCC appeared to limit the right finding that civil parties could not speak in person in pre-trial appeals.

The ECCC has now launched a media campaign to encourage victims to participate in the upcoming proceedings. Thus civil parties have been given until the 2nd February to come forward. So far 28 people have been officially recognised as civil parties and 70 are being processed.

The trial of Duch is scheduled to begin in March. It is thought that the trials of the other four detainees will not start before 2010.

ICC Prosecutor to Charge Sudanese President?

This blog post was submitted by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe, who is reading for a PhD entitled The Serious Crimes Process of East Timor in the Field of Human Rights Law under the supervision of CCJHR Co-Director, Dr. Siobhán Mullally

The Guardian, The New York Times and the BBC this morning report that the ICC Prosecutor, Luis Moreno Ocampo is to seek the arrest of the Sudanese President Omar Al-Bashir on Monday next for war crimes, crimes against humanity and genocide committed in Darfur. Currently, two Sudanese (Ali Kushayb, a leader of the Janjaweed militia, and Ahmad Harun, currently fulfilling one of the more ironic positions imaginable, that of domestic Humanitarian Affairs minister) are charged with 51 counts of war crimes and crimes against humanity, including acts of murder, persecution, torture, rape and forcible displacement. Neither has come before the Court. At a time of existential crisis for the ICC, the move can be interpreted as a bid to reassert the ongoing relevance of a body that has yet to complete a trial since establishment in 2002 after the signing of the Rome Statute in 1998. As William Schabas, the head of the Irish Centre for Human Rights at the National University of Ireland, notes: “This is a very decisive moment for the court. It has been going through a terrible period, this could revive its image and make people feel it’s a robust dynamic institution, or it could be another blow.” This note of pessimism is worth bearing in mind – the story of the ICC has been one of disappointment, disillusionment and anticlimax, most notably in the disintegration of the case against Joseph Kony and allegations by diplomats that the pursuit of arrest warrants in Uganda hampered peace negotiations.

There are justifiable fears that an indictment of Al-Bashir will impair what halting progress there has been made in calming, albeit imperfectly, the situation in Darfur. There are also fears an indictment might serve as motivation to remove international aid workers and peacekeepers in Darfur. The NY Times quotes Alex de Waal, a Sudan expert at the Social Science Research Council in New York: “Bashir is paranoid; he feels the world is out to get him. He is prone to irrational outbursts and could respond in a very aggressive way.” Indeed, peacekeepers were attacked with seven fatalities last Tuesday, while several members of Doctors Without Borders were expelled from the country last week. A charge against Al-Bashir would represent another welcome erosion of the idea of head of state immunity most notable in the prosecutions of Slobodan Milosevic and Charles Taylor. Though both were sitting heads of state at the time of indictment, there was little prospect of them being brought before the ICTY and SCSL while in power, as the Sudanese President so securely is. Milosevic and Taylor had to be removed from office domestically before being brought to justice, something there is little prospect of in Khartoum. Charges might also be welcomed as a move away from the patent absurdity of charging militia leaders and Ministers but ignoring those “conflict entrepreneurs” further up the chain who instigate or retain the capacity to restrain the violence.

Nonetheless, aside from the Kantian moral imperative to prosecute, what of the other instrumental purposes that so often animate transitional justice? Put more simply, given the patent unlikelihood of Al-Bashir being arrested and brought to The Hague any time in the foreseeable future, what good will come from charging someone who will never come before the courts and from hardening the attitude of someone who has shown a willingness to slaughter his own people and to remove international peacekeepers and aid workers whenever it becomes politic to do so? The ICC Chief Prosecutor’s attitude seems to be that it is better to light a single candle than to curse the darkness, but the candle could set fire to the negotiations that have brought peacekeepers to Darfur and restrained the butchery. It may dash what little hope of progress that remains.