The press in recurrent flurries of excitement reported and re-reported on Bashir travels despite international arrest warrants. His most recent trip to Kenya to attend the signing ceremony of the neighbour’s new constitution was a focus of great attention. More so, because this time the International Criminal Court had approached the Security Council and the host to take the necessary measures, i.e. detain him. Kenya’s response according to the East African was a cultural rather than a legally based refusal. The neighbouring nation just told the ICC, which incidentally is also investigating Kenya’s post elections violence, that insulting or embarrassing a guest is not considered African at all. So Bashir arrived back in Khartoum waving the flags of victory.
Over time the ICC’s insistence that it will not consider political factors in pursuing what it perceives as purely legal ends, arrest of an accused criminal, has boomeranged to scar its credibility and question its function. Bashir’s case has demonstrated how deeply embroiled in political calculus the ICC is even if it denies so. In essence, Bashir is safe from the ICC as long as he has something to deliver to his Western spectators, namely an intact referendum, a smooth post-referendum transition, and additionally a Darfur clean-up operation. The ICC one the other hand can do fairly little about it. Where does all this leave the question of justice in Darfur? I suppose the primary flaw of the ICC approach is its disregard of local agency, and the inability of its judicial categories to comprehend the entanglement of local agents within an international market of interests and agenda.
Today, the degeneration of the Darfur conflict into a situation of lawlessness, largely devoid of political verse, has forced a re-diagnosis of its nature. From the current position of hindsight the US, which initially proclaimed genocide, has come to endorse the NCP’s ‘domestication’ plan, nothing else but a law enforcement campaign, however this time with international patronage. With this move, and considering the abject failure of the rebel movements’ political leadership, the de-politicisation of the Darfur conflict seems sealed. The effective consensus of US, UN, AU and others, compliant with NCP reasoning, is that the Darfur dilemma today is largely humanitarian and administrative. What is needed then is an efficient government capable of enforcing its power and creating the suitable conditions for a return to ‘business as usual’, not a turmoil round of politicking in search for a new one. Till further notice, the ICC has no place on the international Darfur management board, it is headed by Bashir.