This week the International Criminal Court, or ICC, took important steps
toward promoting peace and accountability in Sudan by urging an arrest warrant
for crimes against humanity against the Sudanese President Omar al-Bashir.
Sadly, but somewhat unsurprisingly, the step has set off a chorus of
hand-wringing among certain diplomats, academics, and pundits who are now
arguing that holding perpetrators of crimes against humanity accountable for
their actions is unhelpful. In the Financial Times a columnist positively
quelled at the notion of bad people being held responsible for their actions,
bemoaning that “the threat of international justice may in fact be working
against peace.” A veteran academic expressed his worry that almost all African
senior officials could be made vulnerable to similar charges by this precedent.
Let’s be clear: Holding people accountable for war crimes is not only the
right thing to do from a moral perspective—it directly promotes peace and makes
future such abuses less likely. Part of the reason Darfur has remained locked in
crisis for years is that the international community has been slow to
acknowledge what has always been painfully obvious: The janjaweed militias that
have terrorized and decimated Darfur have been directed by the Sudanese
government. The militias were financed by the government, and received direct
battlefield support from the Sudanese military. The International Criminal Court
is doing no more than acknowledging the plain, painful truth of Sudan’s tragedy.
The prosecutor should be congratulated for recognizing that turning a blind eye
to war crimes is not helpful.
Case One: Slobodan Milosevic
If the hand-wringing all feels a bit familiar, it is because we have been
through this more than once before. In 1999, during the Kosovo conflict,
Slobodan Milosevic was indicted in the middle of not only a NATO bombing
campaign to reverse the ethnic cleaning in Kosovo, but of high-level peace talks
between the United States, Russia, and Finland to end the war.
Very few commentators took exception with the notion that Milosevic had been
intimately involved in directing ethnic cleansing, genocide, and sundry other
war crimes in Bosnia and Kosovo. But Russian envoy Viktor Chernomyrdin said the
indictment “pulled out the rug from under the negotiating process,” as both
Russia and China decried what they called a “political” indictment that was
designed to scuttle peace talks.[1 ] Others suggested the indictment would push
Milosevic to stay in power permanently or lead his forces to adopt an even more
brutal approach on the ground in Kosovo.[2 ] Some insisted that Milosevic would never face
justice because the question of how he would be handed over to authorities was
not immediately apparent. Instead of appreciating that Milosevic employed ethnic
cleansing in Kosovo in large part because he had used such tactics with impunity
in the earlier Bosnia conflict, commentators appeared deathly afraid that the
international community might somehow offend Mr. Milosevic’s delicate
sensibilities.
Yet, in retrospect, the work of the Yugoslav tribunal and the indictment of
Milosevic led to none of the doomsday scenarios envisioned by the skeptics. Yes,
the Russians postponed a single diplomatic trip to Belgrade for one week to
express their dissatisfaction with the indictment, but the peace talks resumed
quickly and Milosevic accepted the demands that were placed upon him: Kosovar
refugees were allowed to return home; Serb forces withdrew from the province and
a NATO-led force entered to provide security.
Milosevic’s hold on power did not last long after the 1999 war and his
indictment. When he tried to steal a September 2000 presidential election,
Milosevic was ousted by massive street protests, and turned over to the
international tribunal a number of months later. He died of a heart attack
during his war crimes trial proceedings.
So, what did we learn from the Milosevic example?
- Indictments don’t necessarily derail peace talks and, indeed, they seem to
be most helpful in clarifying the minds of dictators that their very existence
is at stake.
- Indictments send a powerful message to the cronies, business partners, and
sycophants that orbit around such dictators that they may well be lashed to a
sinking ship and should get out while they can. This allows more responsible
political voices space to challenge the authority and destructive policies of
the ruling government. The Kosovo conflict marked an important point when
Milosevic’s corrupt business partners began to see him as much as a liability
as an asset.
- War crimes indictments have a chilling effect on commanders on the ground.
Few military commanders want to be vulnerable to such prosecutions, and they
are more likely to alter their behavior if they know the international
community is serious about justice.
- The fact that members of different ethnic communities were indicted for
their particular crimes furthered the sense that the tribunal approached its
work with an even hand.
- More broadly, the war crimes prosecutions in the Balkans have been a
remarkable cornerstone in allowing remarkably rapid progress in
reconstruction, stability, and democratization across the region because they
removed the most noxious nationalists who had inflicted such terrible
suffering on the civilian population.
Case Two: Charles Taylor and His Conditional Exile
In June 2003, Liberia was on the brink. Rebel forces had advanced within 10
miles of the capital in the first of a series of offensives that Liberians would
dub “World Wars” for their ferocity. President Charles Taylor, who had directed
a brutal proxy war in Sierra Leone using legions of child soldiers, was now
facing a taste of his own medicine.
On June 4, Taylor was in Accra, Ghana for the opening of peace talks that
aimed to negotiate an end to the Liberian conflict. Shortly after Taylor
promised to step down by the end of the year, the special court for Sierra Leone
unveiled an indictment against Taylor for war crimes and crimes against humanity
perpetrated during that country’s brutal war. The court hoped that Ghanaian
authorities would arrest Taylor, but instead he was allowed to return to
Liberia, albeit as an international fugitive. Some diplomats engaged in the
negotiations denounced the indictment as an impediment to peace, and the
presidents of South Africa, Nigeria, and Ghana complained that they had been
“sandbagged” by the timing of the indictments as they tried to persuade Taylor
to resign.[3 ] Pessimists were quick to critique the court’s
prosecutor for interjecting the concept of justice into the rarefied realpolitik
of peace negotiations.
In fact, Taylor’s indictment, combined with unprecedented levels of
international pressure (including a U.S. warship on the horizon) helped to build
the leverage necessary to actually move him out of Monrovia into a negotiated
exile in Nigeria. The terms of this deal were clear: As long as he stayed out of
Liberian politics, Nigeria would keep him out of the hands of the court, despite
an Interpol warrant for his arrest.[4 ]
Despite stern public warnings from his host, Taylor did not hold up his end
of the bargain.[5 ] From exile in Calabar, Nigeria, Taylor used his
connections to international criminal networks to fund a range of presidential
candidates in Liberia’s transitional presidential elections, delivered support
to armed groups in the region, and even supported an assassination attempt
against the President of Guinea.[6 ]
Taylor’s post-exile behavior violated the terms of his asylum, but it was
also a significant change from the utterly brutal behavior exhibited during his
career as a warlord. Despite his regional reach, Taylor never again attempted to
reignite the regional contagion of violence against civilians that he had
previously exported to Sierra Leone, Guinea, and Ivory Coast. International
pressure in the form of his indictment dramatically changed the context of
conflict in Liberia and helped to bring about genuine civilian protection on the
ground.
Nigeria continued to host the intransigent Taylor through Liberia’s tense
elections. Following the inauguration of President Ellen Johnson-Sirleaf,
political pressure to deliver Taylor to justice mounted. A dramatic and nearly
successful escape attempt was foiled at the last minute when Taylor tried to
cross from Nigeria into Cameroon. Taylor was turned over to the special court
and is currently facing trial on 11 counts of war crimes and crimes against
humanity. Meanwhile, Liberia benefited from the deployment of a sizeable Chapter
VII peacekeeping operation and substantial international support during its
transition. Under President Johnson-Sirleaf, Liberia is on the long road to
recovery.
Today, self-professed realists argue that Taylor’s handover to justice sent
the wrong message to dictators like Bashir and Zimbabwe’s Robert Mugabe,
maintaining that it undermines the credibility of amnesty offers to dictators
who are all the more likely to hold on to power at any cost. This facile
misreading of history misses the real lessons from Taylor:
- Conditional asylum remains a viable option. Taylor opted for exile because
the right combination of pressures was belatedly applied by regional and
international actors. It is the responsibility of international mediators to
make clear the terms of such a deal and for the countries involved to ensure
its credibility. There was no one but Taylor to blame that he broke a deal to
which he agreed.
- International justice shines harsh light on human rights violations in
otherwise remote places, deterring would-be warlords from emulating thugs like
Taylor. The special court for Sierra Leone has helped to end the cycle of
impunity in the Mano River region.
Case Three: Holding a Criminal Regime to Account in Sudan
Skeptics warn that the ICC’s action against Bashir may cause Sudan to
implode.[7 ] But hundreds of thousands in Darfur have been
killed or displaced by violence and its fallout. The UN-led peacekeeping effort
remains largely stillborn, with seven peacekeepers killed in an ambush on July
8. Peace talks have been a dead-end, and tensions between North-South in Sudan
threaten to unravel an earlier peace deal and could hasten Sudan’s
disintegration. This is not a status quo that we should worry about upsetting
with an arrest warrant.
On the contrary, the only way by which the fundamental dynamics of conflict
in Sudan will change is by introducing accountability. President Bashir’s
behavior in Darfur was predictably consistent with the way he presided over a
war strategy in southern Sudan that led to seven times as many deaths. In waging
its conflicts, the Sudanese government has repeatedly employed a strategy of
divide-and-destroy at multiple levels of society, arming neighboring militias
against each other to create a flimsy sense of plausible deniability that they
were not directing the violence. No one on the ground had any illusion about the
Sudanese government’s criminal behavior, and neither should the international
community. Human rights violations committed by rebels in Darfur and the South
should not distract attention from the culpability of the Sudanese government in
deliberately directing the great majority of these atrocities.
Like Milosevic and Taylor, impunity has emboldened Bashir over the years. It
would be illogical for him to alter a brutal but successful formula for
retaining power. Janjaweed militias backed by the Sudanese armed forces
destroyed the homes and livelihoods of Darfur’s non-Arab peoples. Today in the
camps this slow-moving genocide continues, by attrition, through disease and
malnutrition. Remember, genocide is not only gas chambers or militias with
machetes. Genocide is the deliberate creation of conditions aimed at bringing
about the destruction of specific groups of people on the basis of their
identity, such as we have seen in Darfur. ICC Prosecutor Luis Moreno-Ocampo’s
June 5 statement before the Security Council clearly articulates the organized
use of organized insecurity, systematic rape, and deliberate destruction of
communities in these camps.[8 ]
The case against Bashir introduces three new elements into the Darfur
equation: leverage, deterrence, and protection. How they are utilized by the
international community will help determine whether or not a solution for Darfur
is at hand. Until now, the UN Security Council and powerful states have done
little in the way of building direct leverage that can be utilized in support of
either peace talks or protecting civilians on the ground. Although the ICC
remains independent of the Security Council, there are means by which its
investigations can be suspended or its targets given security assurances in
exchange for a binding exile deal.[9 ] Bashir now must understand that his fate is tied
to a peaceful resolution of the Darfur crisis, a sensible peace deal, and
deployment of the UN-led protection force. After Moreno-Ocampo presents his
case, the ICC judges will most likely take several months to make a decision on
issuing a warrant for arrest. During this time the Security Council should
vigorously build leverage in support of a peace deal and deployment of
peacekeepers. Equally, the Security Council needs to understand that any effort
to derail justice or interfere with the chief Prosecutor’s work would be a
disaster.
Deterrence is also a positive new potential factor. Proper follow up to
Bashir’s warrant could deter future perpetrators of crimes against humanity in
Sudan.
Least discussed but potentially most important are the implications the
arrest warrant will have for protecting civilians. The record shows over the
last two decades that General Bashir’s regime has backed off its most deadly war
strategies when international pressure has been well coordinated and at its high
points. When the spotlight was on the regime’s use of food as a weapon, it
relented. When the pressure focused on ending bombing of civilians in the South,
it stopped. When the temperature went up over the regime’s facilitation of a
resumption of slavery, it abandoned its strategy and slave-raiding ended.
Putting the spotlight on Bashir provides a significant point of pressure that if
backed by key governments and the UN Security Council could lead to real
protection for the civilian population.
Darfurian Perspectives on Justice
Absent from all too many discussions about peace and justice in Darfur is the
voice of the Darfurians themselves. In our visits to the region, from reports
coming from inside Darfur as well as the Darfurian diaspora, the people of
Darfur stand united behind the demand to end impunity. Despite the many
divisions among Darfuri groups that have slowed progress toward a viable peace
in Sudan, our research has found that Darfuris speak with one voice on several
issues. The demand for justice is one which has galvanized Darfurians even amid
dire circumstances.
The people of Darfur demand that the government of Sudan adheres to the rule
of international law by arresting and surrendering suspects to the ICC. They are
very clear on who they think was the perpetrator in this case. In numerous
videos and documentaries filmed inside Darfur or in the refugee camps, displaced
Darfuris squarely place the blame on the government of Sudan. Some people
mention the name of President Bashir as the culprit, others mention Director of
National Intelligence Salah Gosh and other state officials, but the message is
clear: It is the regime that is responsible for the genocide.
Many Darfurians realize that it is impossible for the ICC to prosecute every
alleged genocidaire in Darfur. They posit a solution whereby the ICC prosecutes
the worst offenders, while serious reform to the Sudanese justice system enables
it to handle the cases of the lower ranks of implicated persons.
ICC charges against Bashir, or any high-level official from his government,
will be welcomed by Darfurians of all walks of life, because to them it
represents the first step in ending impunity, and a hope for closure to a life
of misery that seemed endless. It would also be a recognition from the
international community that justice for Darfur will be served, even if it was
delayed for a while.
Conclusion
Several spurious arguments continually obstruct efforts to secure both peace
and justice in war-torn corners of the globe. World weary “experts” are often
far too quick to speak about Sudan the same way they used to speak about the
Balkans and West Africa—as a hopeless wellspring of endless ethnic tensions
doomed to perpetual violence. It is baffling why anyone would think that
acceding to the demands of war criminals is a sensible path to securing peace.
Conflict in Sudan may be complicated, but at its root is the criminal
behavior of a regime that has continually used murderous and genocidal tactics
to maintain power. Unless concerted international action is taken to impose a
cost on the perpetrators of these crimes, they will not change their behavior.
And although international politics may preclude punishment for every regime
that may be guilty of atrocities, just because we cannot yet go after every war
criminal does not mean we should go after none.
Two and a half million Sudanese lives have been extinguished as a result of
the war tactics of President Bashir and his regime, and the chief Prosecutor
simply and elegantly makes clear that such crimes can not be committed without
cost. Yes, there will be many perilous days ahead in Sudan full of high-stakes
diplomacy, confrontation, and difficult choices before Bashir and his
accomplishes face justice. Yes, the voices of the naysayers at times will reach
a crescendo. However, the International Criminal Court should be applauded for
taking the first brave step down this important road. The world will ultimately
be a better place for its action.
Endnotes
[1 ] “Crisis in the Balkans: The Indictment;
Tribunal is Said to Cite Milosevic for War Crimes,” New York Times, May 27, 1999
[2 ] Tom Gallagher, “Demonisation of the President
is Unlikely to Lead to Peace,” The Herald (Glasgow), May 28, 1999.
[3 ] Felicity Barringer with Somini Sengupta, “War
Crimes Indictment of Liberian President is Disclosed,” New York Times, June 5,
2003
[4 ] ICG, Liberia: Security Challenges, p. 20
[5 ] Anna Borzello, “Nigeria Warns Exiled Taylor,”
BBC News, September 17, 2003, available at http://news.bbc.co.uk/2/hi/africa/3115992.stm; and Open Society Justice
Initiative, “Nigeria Says Taylor Cannot Stay If Asylum Terms Violated,” May 19,
2005, available at http://www.justiceinitiative.org/db/resource2?res_id=102721
[6 ] Coalition for International Justice, “Following
Taylor’s Money: A Path of War and Destruction.”
[7 ] “Former US Special Envoy to Sudan Warns Against
ICC Dafur Indictments,” Sudan Tribune, June 27, 2008, available at http://www.sudantribune.com/spip.php?article27670
[8 ] Statement by Mr. Luis Moreno-Ocampo, Prosecutor
of the International Criminal Court, June 5, 2008
[9 ] ENOUGH has recommended similar measures to deal
with Joseph Kony and the Lord’s Resistance Army in northern Uganda. See “What to
do about Joseph Kony,” ENOUGH Strategy Paper #8, October 2007, available at http://www.enoughproject.org/node/51
