Is there a trade-off between justice and peace? That is the question that now confronts the United Nations Security Council when it considers Sudan in the coming few weeks.
The chief prosecutor at the International Criminal Court (ICC), Luis Moreno-Ocampo, is asking for a warrant for the arrest of Sudan’s President, Omar al-Bashir, on charges of genocide for mass killings in Darfur. The ICC is considering the request and should give a ruling in November or December at the latest.
The possibility of political interference in the workings of the court was built into its founding document, the Rome Statute, which was agreed ten years ago.
Article 16 gives the UN Security Council the right to defer an indictment for 12 months at a time. The African Union and the Arab League are demanding they do just that. They argue that an indictment of Sudan’s president would destabilise the country, ruining any chance of peace in Darfur and unravelling the 2005 comprehensive peace agreement (CPA) that ended decades of war in southern Sudan, the scene of Africa’s longest civil conflict.
On top of that, the prospect of indictment has added weight to complaints that the ICC is picking on Africa. If the court issues an arrest warrant for al-Bashir, there could be an African and Arab backlash against it.
That may be nothing compared to the backlash against aid organisations, peacekeepers and civil society groups in Sudan if the warrant is issued. Since Moreno-Ocampo presented his case on July 14, the offices of aid organisations have been ransacked by Sudanese security officials apparently looking for evidence for a conspiracy somehow linking the NGOs with the ICC investigation. There has been a rash of newspaper articles in Khartoum depicting foreign aid agencies as covers for Western espionage.
Humanitarian groups warn that if they are thrown out and Khartoum closes down its stop-start cooperation with the hybrid AU-UN peacekeeping force, it could be devastating for the survivors of the Darfur atrocities, the 2,5-million refugees languishing in relief camps along the Sudan-Chad border.
These are the underpinnings of the trade-off argument — that in Sudan’s case, in the immediate interests of the hungry and oppressed, and the long-term interests of stability, justice should take a back seat to peace.
The strongest counter to this position comes from an unexpected quarter — from Sudanese human rights and civil society activists who would surely bear the brunt of any government backlash. They insist that there can be no trade-off between justice and peace in Sudan.
”The survivors in the camps say only justice can make a difference. There can be no peace without justice,” Salih Osman, a human rights activist from Darfur and a member of Sudan’s national Parliament, said during a visit to London this week. ”The survivors say: ‘We have nothing to lose. There is no peace, and there is no deployment of the hybrid force.’
”If the agreement in the south had had an element of justice and accountability, Darfur would never have happened,” he added.
Osman’s point is that the same security team in Khartoum were behind the counter-insurgency in both the south and in Darfur. They just replicated the strategy.
The second point Sudanese dissidents make is that the al-Bashir government only responds to pressure. It does the minimum necessary to deflect international scrutiny and as soon as it detects a relaxation, it goes back to business as usual. Al-Bashir responded to Moreno-Ocampo’s announcement by going to Darfur for the first time and making a reconciliatory speech admitting there could be no military solution.
Heavy financial interest
Osman Hummaida, another human rights activist, went further in arguing that an indictment could usher in a more conciliatory government in Khartoum, which would strengthen the prospects for peace in Darfur and the south.
”In terms of the political agenda, it has impacted positively. It has demoralised the hardliners. The people backing reform are in a better position now,” Hummaida said.
”There are people in the [ruling National Congress party] NCP with a heavy financial interest. They want to engage with the international community and they may not let one person stand in the way.”
Hummaida arguably has history on his side. The first sitting head of state to be indicted for war crimes, Slobodan Milosevic, fell from power a year later. Being a fugitive from international justice is a heavy burden to carry in the corridors of power.
It is a critical debate that goes to the heart of just about every ”humanitarian intervention” in recent history. It is certainly one that has split the Security Council.
China and Russia are ready to back a deferral. Washington has put aside its longstanding misgivings over the ICC and said it will not contemplate voting for one. In between, Britain is laying down vague conditions to even consider voting for Article 16, including ”bold and proactive” engagement by Khartoum with the peace process and with the ICC.
British officials say it is up to the ICC to decide whether it is getting enough cooperation, but they suggest the Sudanese government would have to take action against the two men already indicted for Darfur war crimes: a militia commander, Ali Kushayb, and the current Minister for Humanitarian Affairs, Ahmed Haroun.
This week, the government appeared to bow to the pressure by arresting Kushayb, but it is so far unclear whether he will face trial. He was arrested before, during a similarly intense period of pressure, and quietly let go soon afterwards.
France has given out mixed signals, suggesting at one point that only the surrender of Haroun and Kushayb to the ICC would be sufficient, and then later softening their position to saying that Haroun should leave office and that both suspects should hire lawyers to deal with the court.
Thus far, Khartoum has not even done enough to satisfy Paris, let alone London or Washington, so an Article 16 vote looks highly unlikely. If the ICC does issue an arrest warrant as expected, we will find out soon enough whether justice can only be done at the expense of peace in Sudan. — guardian.co.uk