How Can You Argue Peace With No Justice?

It's hard to argue in favor of taking a risk when millions of lives are hanging in the balance.

But while my blogger-in-crime Michael Kleinman supports the suspension of the International Criminal Court (ICC) indictment proceedings against Sudanese President Omar al-Bashir, arguing that an indictment will produce a violent backlash by the government against the citizens of Darfur, I beg to differ. Emboldened by nearly 30 years of impunity, al-Bashir and his National Congress Party (NCP) have made war and ethnic cleansing the modus operandi of their system of governance, and the potential ICC indictment creates the first real lpotential to marginalize the regime and bring the conflict closer to an end.

The suspension of the indictment proceedings now, while Bashir is merely paying lip service to peace, will empower the regime even further, and will completely eliminate any international clout in forcing the government to the peace negotiation table. If Bashir bullies the UN Security Council into deferring the indictment, the international community will lose all credibility and points of leverage to a virtually-unstoppable dictatorship.

Yes, we are talking about millions of lives, but who's to say those lives will be saved if the indictment is suspended? The dynamics of power that are slowly shifting out of Khartoum's favor would reverse course, encouraging the government to step up its efforts to crush the rebel movement in Darfur--to finish what it started, so to speak. And more often than not, civilians are targeted in the guise of "counterinsurgency measures." Bashir and the NCP have been doing this ever since they took power in 1989, and an indictment suspension will be carte blanche for them to continue on their merry, gun-wielding, carpet-bombing ways.

By creating a real point of leverage against Khartoum, an ICC indictment of Bashir offers a greater chance of avoiding the "worst case scenario" Michael outlines--that is, direct, large-scale attacks on Darfur's 2.7 million internally displaced  persons (IDPs)--than does a suspension. Millions of lives may be at stake if an indictment is handed down, but those same millions of lives are still at stake if the conflict continues on in perpetuity.

Points of Leverage

The leverage created by the threat of an ICC indictment should not be underestimated. An arrest warrant creates concrete consequences for Bashir--consequences which are clearly seen as a threat, or else Khartoum wouldn't be on such an intense diplomatic offensive against the proceedings. Indeed, Khartoum has a history of capitulating to serious international pressure, as pointed out by the ENOUGH Project:

"Recent history makes clear that Khartoum changes its behavior only when faced with tangible penalties. In three instances-Khartoum's cooperation in the "war on terror," its suspension of support for slave-raiding, and its willingness to negotiate an end to the war in southern Sudan-the regime shifted policy because its diplomatic adversaries drew a line in the sand."

Bashir stands to lose at least some of its current support if an indictment is handed down, particularly if he is indicted on crimes of genocide (he is also charged with war crimes and crimes against humanity). The UN has yet to declare Darfur a genocide, allowing signatories of the 1948 Genocide Convention--including China, a long-time supporter of Khartoum--to avoid their obligations. This cover would evaporate if the ICC issues an arrest warrant on the genocide charge. Professor Gary Bass noted at the Save Darfur conference this weekend, China in particular has indicated that such an event would change the dynamics of their relationship with Khartoum. (Believe or not, some nations actually do abide by the treaties they sign.) Additionally, as was noted multiple times by multiple speakers at the conference, an indictment could encourage more vocal dissent among African nations disaffected with the African Union's support of Bashir.

Khartoum's Charades

But in the meantime, the rally of support by the Arab League and African Union has made Khartoum a little too comfortable. While Michael points to the recent cease fire announcement as an indication that Khartoum is at least acting "more conciliatory," that's all it is at this point--acting. Bashir is playing peacemaker for the international press, but has yet to back it up with concrete actions.

Furthermore, as I wrote previously, careful consideration of Bashir's rhetoric gives significant reason for alarm: Bashir announced that the government would disarm the rebels in order to enforce the ceasefire. First, this is hardly the makings of a cessation of hostility--one side trying to disarm the other sounds more like business as usual to me.   But more importantly, Khartoum suspects IDP camps of stockpiling weapons and other support for Darfur rebel groups. An attempt to "disarm rebel groups" could very well mean military incursion into IDP camps--resulting in the very "worst case scenario" Michael fears in the aftermath of an indictment.

Sure, it's speculation, but given Bashir's history, it's not at all off base.

History's Lessons

The threat of intensified conflict in response to international justice proceedings is nothing new--the same warnings were issued before the arrests of Yugoslav President Slobodan Milosevic in 1999 and Liberian President Charles Taylor in 2003. The doomsday warnings never materialized, and it can be argued that the arrest warrants served to marginalize the violent dictators and advance the ends of the respective conflicts. Milosevic died while on trial at the International Criminal Court for Yugoslavia. Taylor's last words before being shuttled off to exile in Nigeria were, "God willing, I will be back." He's currently standing trial at The Hague.

Michael argues that it's easy to make the argument for the ICC from the U.S. or Europe:

"It's harder to argue when you're actually faced with the task of keeping millions of people alive today, this week, this month.  At which point possible future dangers begin to pale compared to immediate threats. Especially given explicit Sudanese threats to retaliate if an arrest warrant is issued. Just because the Sudanese Government hasn't yet moved against the camps (which they see as supporting the rebels) doesn't mean that they won't, especially if they feel that they have nothing to lose."

I fully respect that, but I also think that we're foolish to let the first compelling opportunity to pressure Khartoum slip through our fingers. Conflicts are not resolved without taking risks--and this one threatens to continue indefinitely unless a risk is taken now.

Furthermore, as was also discussed at the Save Darfur conference, Darfuris are surprisingly (because CNN isn't widely available in IDP camps) well informed about the ICC, and overwhelmingly support international efforts to hold Bashir accountable. At some point, we need to take off our policy hats and consider this for what it is: genocide, mass atrocity, a crime against humanity--hundreds of thousands of lives lots and millions of lives disrupted and under threat.

We can argue until we're blue in the face over the political implications of everything under the sun, but sometimes justice needs to be done simply because it's the right thing to do. Do we let a murderer off if he threatens to kill more? So why would we do so for someone who's murdered hundreds of thousands?

We cannot allow people to get away with genocide. That level of impunity is in itself a crime against humanity.