International justice is very much in the news at the moment with the ICC prosecutor wanting to prosecute president Bashir of Sudan and an effort to impose sanction on Zimbabwe vetoed by Russia and China.
Zimbabwe has been a de facto dictatorship for quite some time. For that reason the sudden international indignation about unfair elections doesn't make much sense to me. It is also surreal: in a continent were millions have died in Congo alone the noise we make about a few thousand political killings in Zimbabwe sounds hollow. And when Western leaders criticize Mugabe for his bad handling of the economy it sounds downright hypocritical: much of the the economic distress has been caused by Western sanctions during the last decade. It looks like for some Western leaders Mugabe is just a whipping boy to set an example for the rest of Africa.
Southern Africa is two decades behind the rest of Africa in its development. Most of black Africa became independent in 1961. In Mozambique and Angola blacks came to power in 1975, in Zimbabwe in 1979 and in South Africa gradually between 1990 and 1994. After 1961 most of Africa went through a period of dictatorships and authoritarian leaders and only recently democracy has become more accepted. But at that time nobody in the West cared as we were focused on the Cold War. Now Southern Africa is going through a similar dictatorial period and the West is upset. What makes it specially upset is the eviction of the white farmers. Yet many people believe that that that was an unavoidable part of the decolonization process. Don't count on Tsvangirai to undo it.
The West has supported this 84-year old dictator long after he stopped to behave decently. In my opinion it would be better to focus on South Africa. South Africa has a serious risk to become the next Zimbabwe - as is symbolized by the support that Mugabe gets from South Africa. We should focus on this ideological battle and not on some shoot-from-the-hip international policy. But that requires diplomats who study their subjects in depth - something not popular in the State Department nowadays.
Western democracy is founded on the "Trias politica" principle that separates government, parliament and the judicial system as three separate pillars. This forms a recognition that the judicial system and the division of power are two separate things. How the taxes are divided between the rich and the poor for example is a typical subject that is decided by the executive power and outside the influence of the judges.
However, there is an increasing tendency for the judicial system to take on more powers. Governments - specially from the smaller countries - are more and more caught in web of treaties that restricts their power. The problem is that those treaties are often conceived in a very undemocratic way as can be seen in for example the EU and the ACTA.
The ICTY and the ICC form another side of this judicial takeover. And just as the international treaties one has to ask whether they really provide justice or just petrify inequalities. The eagerness of the US to get other countries into court while it refuses even to sign the ICC treaty give to think.
There is also a practical aspect. Dayton would have been impossible if Milosevic, Tudjman and Izetbegovic had all been indicted by the ICTY (as they deserved according to its laws). The arrest of Taylor despite the guarantees that had been given to him will certainly not encourage other dictators to give up power voluntarily. The recent refusal by Joseph Kony in Uganda to give up his Lord Resistance Army was partly motivated by the fact that the ICC made it impossible to grant him amnesty.
A third problem is the problem of proof - as we have seen in the Milosevic trial. The prosecution may maintain that they had enough proof for conviction, but the trial was far from convincing for those who watched it in the media. So even if Milosevic had been convicted few Serbs would have been convinced.
As mentioned in this comment the prosecutor hopes to convict Bashir on the principle of "perpetrator behind the perpetrator". Such a principle has been used to convict a leader of the Argentinian junta (the prosecutor comes from Argentina and was involved in this process). However, it looks to me like the conviction of Al Capone for tax fraud. It was convincing because Al Capone was a famous mobster and the crimes of the Argentine junta were well known. But in Sudan we will need to build a case that convinces Africa and that can only be done by building a solid case - not some judicial trick.
I don't see what the indictment of its president will help. This is a matter of power - not of lawyers. If we are going to indict every president who violates human rights we will end up with nearly every president who fights a guerrilla war in jail.
My alternative would be to stick with what works: exposing and prosecuting specific cases. Omarska is probably the most famous example as it caused a change in the handling by the Serbs of their prisoners. Operation Lightning was a case where things went wrong. By not prosecuting and even diplomatically protecting (the US blocked a condemnation in the Security Council) the ethnic cleansing of West-Slavonia the West paved the way for Srebrenica.
The ICTY handling of Srebrenica was in this context certainly helped setting the limits of what is acceptable in Kosovo: there were no massacres on that scale. Unfortunately the condoning of Operation Storm paved the way for the mass expulsion of Albanians in a very similar pattern in the Kosovo war.
In the case of Sudan that would mean the identification of one very lethal raid. That raid would then become the target of intense investigations aimed at identifying both victims and killers and establishing the exact order of events. And its commanders would be indicted. This could result in a detailed report that even the OAU and the OIC would feel obligated to support. I don't expect any of them to support an indictment or to help with an arrest of Sudan's president.
Such a report and prosecution of army officers has a much better chance to achieve a change in behavior in Sudan than an arrest of Sudan's president that even if it succeeded will be seen in Sudan and its neighbors as more a Western complot than related to human rights.
The New York Times has an article detailing how the threat of the indictment is received in Sudan. Most of the opposition has declared support for Bashir. They fear that the country could fall apart in an everyone-for-himself civil war if he is removed. They also note that Bashir is seen inside Sudan as a moderate who has supported the peace agreement with the south against radicals in his own party. One Western observer is quoted as saying that the government plays a minor role in Darfur at the moment and that the main fighting nowadays is between local groups. For that reason he believes that the term "genocide" is not applicable in the present situation.
The only more positive note is that the Sudan government seems more open to foreign aid and peace keepers.