Tempting as it is to disagree on sight with everything written by Jonathan Steele in the Guardian, I did think about this one arguing the case against the International Criminal Court indicting the President of Sudan.

Spared as I am from knowing the slightest thing about Sudan, what might I offer by way of First Principles?

JS distinguishes this case from the indictment against Slobodan Milosevic:

The Yugoslav president, Slobodan Milosevic, was under military attack from Nato. Negotiations had been cut off. Ultimately, they were renewed but only with the good offices of the Russians who had shown no enthusiasm for the Hague tribunal’s indictment.

All sort of true enough. But not the best argument for politically and morally supporting that indictment.

The point is that up Milosevic’s indictment we all had been tempted to keep a number of policy eggs in his basket ("better the devil you know", "we have no choice but to deal with the people in power", "realpolitik has to prevail" etc etc).

This meant not throwing our full weight behind the democratic opposition, who consequently were even more demoralised: "even if we do everything we can in these appalling conditions to make Serbia a decent society, the West may not support us wholeheartedly".

Hence lots of unhappy neurotic tweebling at high levels of the FCO and elsewhere as the prospect of the indictment loomed: "now we’ll face a cornered animal, even more dangerous and unpredictable… a bad situation could get a lot worse…"

The indictment of course as I expected had several excellent effects:

  • Milosevic became a skunk – almost no-one serious would engage with him any more
  • therefore all eggs thereafter placed in the opposition basket
  • this allowed us quietly to drop hints to key regime supporters that the game was ending – better to jump ship than sink with him. Wedge-driving and all that. Worked a treat.
  • and we could turn round his slogan that "in the end the world would come to Serbia via me".
  • Instead we could at last say convincingly "Not true! Milosevic is Serbia’s obstacle to rejoining the civilised world – throw him out!"

All this worked remarkably well. Out he was thrown.

Does any of this apply to Sudan? Probably some of it. Especially the wedge-driving bits – if the President is indicted we can start picking away much more effectively at those around him.

Not an overnight win, but a big change in the psychological climate, empowering at least a bit more those normal people caught in the Sudanese struggle.

As for Jonathan Steele:

Holding people to account for their actions is a desirable goal, but it has to be weighed against the difficulties it creates if the indictees still hold power. Bashir is not Pinochet, who was long out of office as well as out of favour in Chile when he was indicted (by a foreign judge, not by an international court).

The list of practical problems that would flow from an indictment of Sudan’s president is long. It far outweighs the benefits. The ICC’s prosecutor should think again.

Does this not miss the most basic point? That if the ICC thinks he ought to face charges for vile atrocities, they indeed must indict him regardless of the political inconvenience and practical problems?

Otherwise it is not an implacable independent Court, but a whim of whatever political fashion happens to be prevalent?

Plus, of course, if they sense ICC weakness local lunatics everywhere only have to threaten to create an even longer list of "practical problems" for the Guardian to bewail the ‘likely’ impact of any indictment.

Which rather defeats the point of setting the ICC up in the first place?