Let justice be done?

From the New York Times editorial page, and on the day when we’re expecting the International Criminal Court to hand out its decision on whether to indict Omar al-Bashir for genocide (or for a lesser charge of crimes against humanity) in Darfur, the two opposing points of view on the role of the ICC set out pretty clearly.

Update: the warrant’s out. Five counts of crimes against humanity and two of war crimes (specifically, ordering attacks against civilians, and pillaging). But, no genocide charge (the warrant might be amended later to include genocide but this one doesn’t have it). Moreno-Ocampo was very insistent on this six months ago, but it was widely thought at the time that it looked like overreach and apparently the court has decided to stick with what it can definitely prove. More discussion perhaps later.

On the one hand, Archbishop Desmond Tutu (quite why he’s been selected to comment on Sudan I am not sure except that he’s “African”, in the same way in which King Juan Carlos is “European” and therefore presumably writing editorials about Belarus for the Times of Zambia[1]) sets out the fiat iustitia ruat caelum point of view; basically that there is no hope for an end to human rights abuses in the world unless dictators and genocidaires are brought to justice, and that if this is going to happen, then the ICC has to be allowed to carry out its function as a court, rather than becoming a secondary theatre of peace negotiations. It certainly wasn’t anticipated in when the ICC was founded that it would have its indictments traded off as bargaining chips.

On the other, Franklin Graham (Billy Graham’s son, who ran the Billy Graham missions in Sudan and negotiated with Bashir over the targeting of Christian missionaries)[2] sets out the opposite case; that “let justice be done though the heavens fall” isn’t such great fun if you happen to be standing below the heavens when they start falling. It’s certainly known that ICC rulings have made a peaceful outcome much more difficult to achieve in Uganda (a conflict that has killed a more people than Darfur). Using the indictments in a version of the world’s biggest plea bargain makes a sort of sense, but given that the ICC does not actually have any means of putting its remit into effect in Sudan or any plan for getting one, to interfere with ongoing peace talks by indicting one side (and thereby making an implicit promise of support to the Darfur rebels which nobody intends to keep) is a very risky roll of the dice indeed.

I’m genuinely not sure what to think here; there are points to be made in favour of both sides. My temperamental bias is to side against the taking of irreversible steps with unpredictable consequences – but should this sort of Toroffenpanik even be counted on the same scale as the demands of justice for some of the worst people in the world?

[1] I have to say I find Tutu’s moral grandstanding a little bit curious here, given that the Republic of South Africa has actually faced up to the question of whether to make the choice between the demands of justice and the need for a lasting peace, and it rather famously chose a truth & reconciliation approach rather than a series of human rights prosecutions. Archbishop Tutu actually chaired this commission. He writes here “there is no peace precisely because there has been no justice”, but when the issue was in his own country rather than 3000 miles away, he wrote a book called “No Future Without Forgiveness”. There is a lot to be said in favour of the view that justice has to be done whatever the consequences, but Desmond Tutu is a strange person to be saying it.

[2] Who obviously also most likely has a political agenda here; reading between the lines, he seems to be quite worried that the removal of Bashir would bring into power a government that would try to renege on the peace deal with the South of Sudan. This is quite likely, as the Darfur rebel groups are a) Islamists, albeit of a rather unconventional type and b) nationalists, whose original casus belli was a belief that Darfur was not sharing fairly in the oil rents. So the idea would be that Bashir gets indicted and deposed, Sudan gets taken over by a coalition which wants to extract more from the South, and the South Sudan civil war sparks up again. I just don’t know enough about Sudanese politics to assess this view, but it’s certainly plausible; one thing that we do know (thanks to one of the ships involved getting hijacked by Somalian pirates) is that the South of Sudan government is making significant arms purchases.