My good friend Paige Morrow wrote the article below and I decided to post it on here. My comments and thoughts on this topic are below the article:
Peace or prosecution: Should the indictments against Sudanese president al-Bashir be suspended?
Peace or prosecution: Should the indictments against Sudanese president al-Bashir be suspended?
A decade after 120 states approved the Rome Statute that created the International Criminal Court (ICC), the Court indicted Sudanese President Omar Hassan al-Bashir on charges of crimes against humanity and war crimes on March 4, 2009. The charges stem from the conflict in Darfur, where al-Bashir is claimed to have intentionally directed attacks against the civilian population, murdering, exterminating, raping, torturing and forcibly transferring large numbers of individuals since early 2003. The indictment underscores the troubled relationship between peace and justice. The Security Council has the authority under article 16 of the ICC’s founding treaty to suspend investigations and prosecutions for renewable one-year periods where the suspension is in the interests of international peace and security. A viable peace still has not been reached in Sudan, and critics have argued that the charges laid against al-Bashir should be suspended because of his instrumental role in the peace process.
Basis for the Charges
Darfur has long been rife with tension over grazing and land rights between the primarily nomadic Arabs and farmers from the Fur, Massaleet and Zaghawa communities. The current conflict dates back to early 2003 when two armed opposition groups, the Sudan Liberation Army (SLA) and the Justice and Equity Movement (JEM), began to launch attacks on government targets, claiming that the Arab-dominated government discriminated against Black Africans. Darfurian refugees allege that the Janjaweed, fighters on horseback accused of attempting to forcibly remove and kill Black Africans in vast swathes of territory, follow behind air raids by government aircraft, riding into villages on horses and camels to pillage, loot, rape and slaughter. The Janjaweed, widely believed to have been armed by Khartoum, have wreaked havoc in the region. Khartoum admits mobilizing ‘self-defence militias’ to quash the rebel groups but denies any connection to the Janjaweed.
Is there a peace to jeopardize?
The question of whether to prosecute the perpetrators of gross violations of human rights forms an integral part of conflict negotiations. Difficult compromises have been reached in post-apartheid South Africa, Liberia, Sierra Leone and East Timor, amongst others. African and Arab countries believed that the arrest warrant could diminish Khartoum’s willingness to negotiate a lasting peace, while UN officials feared that the warrant could lead to reprisal attacks against civilians, aid groups or international peacekeepers deployed in Darfur. But many observers deny that there is a credible peace process to jeopardize. Heba Aly reported in The Christian Science Monitor that heavy fighting continued between government and rebel factions in areas of Northern Darfur held by the only rebel group to have made peace with Khartoum, contrary to the cease-fire entered into in 2006. There is broad concern that removing al-Bashir from the presidency would endanger the already shaky peace treaty between the Sudanese government and rebels in the South that was signed in 2005 to end the civil war that claimed 2.2 million lives. Human rights activists counter that al-Bashir is no longer instrumental to the peace treaty. Although al-Bashir fought members of his own party to approve the negotiations, the peace treaty is now considered desirable to Khartoum, which has an incentive to stabilize its relations with the South in order to access the large oil deposits found there.
Tension between Justice and Peace
More generally, supporters of the indictment argue that peace should not be obtained at the expense of justice for the victims. If the indictment were shelved in order to achieve national reconciliation, it would set a dangerous precedent. It would also be extremely difficult to reinstate the charges, even if in theory the suspension expires and must be renewed after one year. The suspension would weaken the moral and legal authority of the ICC, which represents a symbol of the fight against impunity. At the end of every armed conflict, difficult decisions must be made regarding who will be punished for their crimes and who will be allowed to escape criminal prosecution. Sudan continues to be embroiled in fighting, and there is not yet an envisageable end to the turmoil. Allowing al-Bashir to evade the charges laid by the ICC would mean granting a large concession to an individual who has failed to cooperate with UN peacekeeping initiatives, pursue peace negotiations or pursue war criminals on Sudanese territory.In some instances it is necessary to choose between peace and prosecution. The international community should view with skepticism the argument that such an ethical dilemma is present in Sudan.
Basis for the Charges
Darfur has long been rife with tension over grazing and land rights between the primarily nomadic Arabs and farmers from the Fur, Massaleet and Zaghawa communities. The current conflict dates back to early 2003 when two armed opposition groups, the Sudan Liberation Army (SLA) and the Justice and Equity Movement (JEM), began to launch attacks on government targets, claiming that the Arab-dominated government discriminated against Black Africans. Darfurian refugees allege that the Janjaweed, fighters on horseback accused of attempting to forcibly remove and kill Black Africans in vast swathes of territory, follow behind air raids by government aircraft, riding into villages on horses and camels to pillage, loot, rape and slaughter. The Janjaweed, widely believed to have been armed by Khartoum, have wreaked havoc in the region. Khartoum admits mobilizing ‘self-defence militias’ to quash the rebel groups but denies any connection to the Janjaweed.
Is there a peace to jeopardize?
The question of whether to prosecute the perpetrators of gross violations of human rights forms an integral part of conflict negotiations. Difficult compromises have been reached in post-apartheid South Africa, Liberia, Sierra Leone and East Timor, amongst others. African and Arab countries believed that the arrest warrant could diminish Khartoum’s willingness to negotiate a lasting peace, while UN officials feared that the warrant could lead to reprisal attacks against civilians, aid groups or international peacekeepers deployed in Darfur. But many observers deny that there is a credible peace process to jeopardize. Heba Aly reported in The Christian Science Monitor that heavy fighting continued between government and rebel factions in areas of Northern Darfur held by the only rebel group to have made peace with Khartoum, contrary to the cease-fire entered into in 2006. There is broad concern that removing al-Bashir from the presidency would endanger the already shaky peace treaty between the Sudanese government and rebels in the South that was signed in 2005 to end the civil war that claimed 2.2 million lives. Human rights activists counter that al-Bashir is no longer instrumental to the peace treaty. Although al-Bashir fought members of his own party to approve the negotiations, the peace treaty is now considered desirable to Khartoum, which has an incentive to stabilize its relations with the South in order to access the large oil deposits found there.
Tension between Justice and Peace
More generally, supporters of the indictment argue that peace should not be obtained at the expense of justice for the victims. If the indictment were shelved in order to achieve national reconciliation, it would set a dangerous precedent. It would also be extremely difficult to reinstate the charges, even if in theory the suspension expires and must be renewed after one year. The suspension would weaken the moral and legal authority of the ICC, which represents a symbol of the fight against impunity. At the end of every armed conflict, difficult decisions must be made regarding who will be punished for their crimes and who will be allowed to escape criminal prosecution. Sudan continues to be embroiled in fighting, and there is not yet an envisageable end to the turmoil. Allowing al-Bashir to evade the charges laid by the ICC would mean granting a large concession to an individual who has failed to cooperate with UN peacekeeping initiatives, pursue peace negotiations or pursue war criminals on Sudanese territory.In some instances it is necessary to choose between peace and prosecution. The international community should view with skepticism the argument that such an ethical dilemma is present in Sudan.
My Thoughts: Will this be a dilemma that will continue to resurface in future conflicts?
This is an interesting article because it highlights a unique problem that the ICC may have when it comes to its role in prosecuting those responsible for conflicts that are still ongoing.
Some of the posters responded to Paige's article on Facebook, by suggesting that this just highlights the problems of the ICC that, in their view, render it useless.
I will respond both to them and to the initial question of this article:
1) Just because the ICC has serious problems in its ability to do its job (one problem specifically cited was one of "selectivity" ie. why does the court go after al-Bashir, but don't lay charges on Eelam Tamoul (in Sri Lanka) and/or Bush and Cheney) doesnt make it illegitimate or mean that we should just disregard its contribution to the international system.
Its has problems for sure. I think too many international organizations are handicapped and impeded in decision-making and action when it comes to either controversial issues which widely split the international community, or issues which for whatever reason, a large portion of the population tragically don't seem to care about (Haiti being one example).
But just because the ICC as an institution has flaws does not mean we should discard it entirely. In my mind that is merely an excuse used to mask the larger concern many countries that do not support it have (like the US) that their leaders could be charged by the court at any time without impunity.
The concept of an authoritative international body which can without impunity arrest and charge international criminals, is, I think most of us who don't fear the international communicty can agree, a good one. Just because we cannot achieve the ideal right off the bat does not mean we should just neglect striving for the ideal altogether.
2) In response to the question of this article, whether or not the court should continue to prosecute al-Bashir if it might impede the Peace process? That is really interesting as it has some implications for similar scenarios in the future. In many situations, I think that I would argue for the protection of the peace process over the rapid indictment of the individual.
In this particular case, if it could be reasonably assessed that without al-Bashir the Peace Process would comepletely collapse, then I might argue that we should consider stopping the idictments. But in my opinion, there is often only a small window of opportunity in which you can get a peace agreement signed, if you let that pass, you risk the deaths of another thousands of people before you get that window again. But the indictment of al-Bashir could be a prolonged process anyway. So generally, I would chose to sign the peace deal and potentially save hundreds of lives, over expedient justice for the families.
However, given that al-Bashir is "an individual who has failed to cooperate with UN peacekeeping initiatives, pursue peace negotiations or pursue war criminals on Sudanese territory" it would seem to me that he wouldn't contribute much to the peace process anyway.
Moreover, the unfortunate reality of legal process is that they have to consider everything they do as "establishing a precendent". So if they halt the indictment for the peace process, as the article says it, would set a dangerous precedent for an already vulnerable court. It is unfortunate that the Court does not have the ability to look at things at a more case-by-base basis, but such is the reality for so many legal decisions in all Western legal systems over the years.
In the case of al-Bashir, I agree with Paige, it makes sense to continue the indictments full throttle, but perhaps this should highlight the need for a more flexible process of prosecuting war criminals? I'm not the lawyer though, you tell me.
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