No Peace without Justice

I had almost forgotten that I had written this, and just stumbled across it!

No Peace without Justice


* Ian WILLIAMS

Eurasia Critic November, 2008

The decision of International Criminal Court Prosecutor Luis Moreno-Ocampo to seek arrest warrants for the President of Sudan and his associates has provoked a flurry of concerns about what effect such a prosecution would have on the peace process in Darfur. With varying degrees of sincerity, there have been calls to weigh the perils of impunity against the continuation of hostilities.
Even those most involved in drafting and bringing into being the International Criminal Court admitted that it was very much a work in progress. In particular, the US delegation under Clinton fought a tenacious battle to limit its effects on the US, and other signatories went a long way to accommodate what was, in effect, the agenda of the Pentagon and the America-Firsters in Congress.
Since there was no way that an explicit "get out of gaol free" card could be written exclusively for Americans, the Clinton administration's tenacity had the effect of weakening the Rome Convention and the Court itself. The Americans were not, of course, alone. France negotiated a seven-year pass before it would be affected by its signature.
While the Clinton White House was ultra-cautious, the Bush administration set John Bolton on the attack, and his unremitting, almost theological, hostility to the ICC led to some amusing scenes when the Council passed resolution 1593, which actually mandated the Prosecutor to investigate crimes committed in Darfur[1]. Bolton, now the US Ambassador to the UN, had spent a decade trying to strangle the ICC, but under pressure from domestic lobbies to show some action against Khartoum, he sent a deputy to explain why the US supported the referral, while still opposing the Court.
Sudan refused to cooperate with the resolution, and when the Prosecutor secured warrants for lesser figures, Ahmad Muhammad Harun, former Minister of State for the Interior of the Government of the Sudan, and Ali Kushayb, a leader of the Militia/Janjaweed, it ignored them. Having already indicted Bashir's surrogates in Darfur, it would certainly be a travesty of justice not to follow up the chain of command and indict the man without whom none of these massacres would have been possible. The prosecution of President Omar Al-Bashir goes to the core of what the court is supposed to be about - the end of sovereign immunity and impunity for crimes against humanity.

To underline what impunity means, just before Moreno announced his request for warrants, on the eve of the 13th anniversary of the massacres of some 8,000 Bosnians in Srebrenica that the Serb forces perpetrated with the tacit connivance of the under-supported and demoralized Dutch peacekeepers, Khartoum's surrogate militia in Darfur, the Janjaweed, killed seven African UN peacekeepers and wounded 19 more. The militia outgunned the peacekeepers - and escaped with impunity[2]
Recent historical experience suggests that a sense of impunity brings outrage in its wake. Srebrenica was the culmination of a long period during which the Serb forces had every reason to think that there would be no consequences for what they did, and during which they treated peacekeepers with contempt and worse.
Sadly, the only powers with the military strength to support the beleaguered peacekeepers in Sudan have locked themselves out of that option with the invasion of Iraq and uncritical support of Israel. Neither the US nor Britain are in a diplomatic position to lecture Khartoum about international legality.
Kofi Annan's great achievement was to get international support for the "Responsibility to Protect" at the 2005 UN Summit. However the abuse of the principle of "humanitarian intervention" retrospectively by Tony Blair to justify invading Iraq, and one might add, the more recent invocation of it by Moscow in Georgia, highlights the failure of the international community to formulate the proposals in ways that would avoid such tendentious abuses. Impotence that forced the US to accept the ICC investigation and prosecution is the only deterrence against the abuses of human rights in Darfur.
The objection that the Prosecutor's act militates against the peace process assumes that peace and justice are somehow irreconcilable. However, diplomacy, without the big stick, without the hint of handcuffs, has had little or no success at all in stopping Bashir's murderous recidivism, as the July attack on the peacekeepers demonstrates.
There were similar objections about the effect of the prosecution of Serbian President Slobodan Milosevic and Liberia's President Charles Taylor on peace efforts. However, their indictments at the respective international tribunals did not hinder negotiations.
Indeed, the years of envoys queuing up for audiences with Milosevic simply persuaded him that he was so indispensable that he could carry on orchestrating killing with no personal consequences. However his rendition to The Hague, and Taylor's to the Sierra Leone court, provided a quick and easy removal of their baneful influence on domestic politics, without the political repercussions that would have ensued if local organs had attempted to prosecute and try them.
It was precisely to avoid the stigma of "victors' justice" that the ICC prosecutor was given independence. The judges of sister tribunals such as the ICTY have shown that they are not prejudiced in favour of the prosecutors, showing a willingness to dismiss charges they find unsupported by the evidence.
In the immediate aftermath of the Prosecutor's announcement, UN Secretary General Ban Ki-moon recognised the independence of the ICC prosecutor. Ban will persist in trying to talk to Bashir in an attempt to get him to do the right thing, but the talking will be done by phone. However, at the back of his mind Bashir will have the fate of Milosevic and Taylor. His travels to many parts of the world will be circumscribed until a trip to the ICC in The Hague can be arranged by the next coup in Khartoum.
One of the few positive developments of the last century is that politicians as varied as Augusto Pinochet, Ariel Sharon and Henry Kissinger have had to consult with their lawyers as well as their travel agents before leaving their homelands. That was with national courts applying international conventions and principles. There are serious problems with such courts of course - think of the stands that Georgian and Russian courts would take over recent events when their national stances are almost mirror images of each other's. Almost laughably, China wanted the Sudanese courts to deal with the perpetrators in Darfur.
The establishment of the ICC, with all its faults and loopholes, was the consummation of the abrogation of sovereign immunity for crimes against humanity. Its independence and multilateral nature give it a credibility to which partisan jurisdictions cannot pretend. Its case against the Sudanese leadership is its first crucial test. Ironically, the US's history of bitter hostility to the whole concept, while damaging the reputation of the US itself, probably enhances the Court's credibility globally.
It is important that the warrants are actively pursued with the backing of democratic states, not only to inhibit the actions of the regime in Khartoum, but also to give pause to others around the world before they emulate such murderous behaviour. Taking into account the justifiably tattered reputation of the UK and the USA, the European Union, Latin Americans and others should be in the vanguard of ensuring the implementation. They should pressure the AU to stop back-pedalling about it.

* Ian Williams is a British born author and journalist, now based in the USA who has been writing about the UN and international justice issues since the Balkan Wars. Currently Senior Analyst for the Washington based Foreign Policy in Focus, his columns often appear in the Guardian online. More details in http://www.ianwilliams.info and http://www.deadlinepundit.blogspot.com.
[1]http://www.un.org/News/Press/docs/2005/sc8351.doc.htm
[2]http://news.bbc.co.uk/2/hi/africa/7497708.stm