Let justice be done?

by Daniel on March 4, 2009

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.



hardindr 03.04.09 at 1:54 pm

Wow, I agree with Franklin Graham. How bizarre is that?


hardindr 03.04.09 at 1:56 pm

Re Update: Now that the warrant is out, how will it be enforced? Presumably, Bashir will not be stupid enough to travel to any country that will detain or extradite him to the ICC.


Daniel 03.04.09 at 1:59 pm

I would presume so, and therefore that it won’t; this will put a bit of a crimp in peace negotiations for simple logistic reasons (the JEM won’t travel to Khartoum[1] and it’s difficult to have peace talks in a war zone). The last round of talks happened in Cairo and Qatar, both of which I think are ICC signatories.

[1] except for the occasional trip to fire mortars at the Presidential palace, obviously.


john b 03.04.09 at 2:57 pm

I suppose future negotiations could take place in the US…?


DC 03.04.09 at 3:03 pm

Maybe Tutu changed his mind on the basis of the South African experience? Just a suggestion.


Daniel 03.04.09 at 4:03 pm

No, couldn’t have been that “No Future Without Forgiveness” was published in 2005. If something’s happened in the last four years to make him change his mind, one might have thought this worth noting in his article on Darfur.


DC 03.04.09 at 4:38 pm

You might be interesteed in this interview with Jose Ramos Horta in today’s Irish Times: http://www.irishtimes.com/newspaper/world/2009/0304/1224242231350.html

From which:

“While he supported calls for a truth and reconciliation commission in the North, he stressed that he did not support calls for criminal prosecutions, such as the prosecution and imprisonment of the British soldiers who fired on Bloody Sunday or of paramilitaries not yet charged with unsolved murders.

His insistence that the truth and reconciliation process in his country not include prosecutions has been unpopular with many Timorese and human rights groups. He dismissed as meddling and counterproductive a United Nations resolution calling for an international tribunal for war crimes in East Timor.

“I feel it would create a backlash,” he said. “I think it would destabilise the country and our relations with Indonesia. We have a good friend in the Indonesian president. And it would be exploited by Islamic radicals and other outside forces. The pursuit of justice cannot be so blind as to ignore the fragility of states, resulting in the unravelling of a fragile peace.”

He said the prosecution of human rights abusers in post-conflict societies too often amounted to selective prosecutions, what he called “victor’s justice”, which fed resentments and grievances that did more harm than good to the prospects of lasting peace and reconciliation. He pointed to the way South African blacks resisted the urge to prosecute and imprison those who used terror to maintain apartheid as an example of a more effective approach.

“The greatest gift for them was freedom,” he said. “They did not need revenge.””


The Sudanese Thinker 03.04.09 at 5:38 pm

It’s issued. Question is, will the international community simply issue verbal support or will it actually enforce the warrant.

I fear it’s the former.

And if that’s the case, then we could be in for a ride of instability, which would suck big time.

Would love to see the bastard go down but not at the risk of watching my country descend into chaos and instability. The last thing we want is another Somalia-like scenario.


P O'Neill 03.04.09 at 10:23 pm

Bashir can go to any Arab country except Jordan and Djibouti without endangering ICC commitments.


Toaf 03.05.09 at 12:32 am

An interesting post. I don’t see the relevance of questioning Tutu’s “selection” to comment on the issue (especially given Graham has also been invited to weigh in). That said, it’s a valid point concerning the path taken in South Africa. Keep in mind, though, that context is important, and the course of justice that works (or doesn’t work) in one country (say, Rwanda or South Africa) need not be applied in Sudan. There is a unique set of issues in the Sudan conflict(s) and their resolution will likely require a unique approach.


John Quiggin 03.05.09 at 5:08 am

I haven’t got a good answer to this, but:

(1) It doesn’t seem as if a truth and reconciliation commission is an option in a case against a current head of state.
(2) Given the increasing frequency of charges against former heads of state, there’s no easy way of promising a dictator thinking of going quietly that charges are laid now.

That seems to point to DDs “world’s biggest plea bargain” idea. If the charges are laid now, they could potentially be settled by some sort of agreement, combining a political settlement with a personal plea bargain. As you and DD say, not exactly justice at its most majestic, but maybe a step forward.


michael mouse 03.05.09 at 7:57 am

The heavens are looking a little shaky,with NGOs all expelled. Empirically it’s looking pretty bleak so far. But at least suffering folk in Darfur can rest easier in their selves knowing that the West places such a premium on Justice.


Katherine 03.05.09 at 6:19 pm

I suggest that Desmond Tutu wouldn’t think of the SA TRC as a denial or abrogation of justice. It depends, for a start, on how you define “justice” – retributive or restorative for example – is just the start of a very long discussion on the subject.


Katherine 03.05.09 at 6:28 pm

Also, the transitional situation in SA was entirely different to the current situation in Uganda. A one-size-fits-all approach to transitional justice w0uld be entirely inappropriate.


dsquared 03.06.09 at 10:03 am

12: I am not yet sure what’s really going on there – throwing a tantrum and threatening to chuck out the NGOs is pretty common behaviour for Bashir and he hasn’t yet actually gone through with the threat.

13, 14: Good point, but if you look at the Tutu editorial, a one-size-fits-all approach is exactly what Tutu was advocating, and he specifically rejects the idea that there should be any tailoring to local conditions. That’s what struck me as so odd.


MFB 03.06.09 at 12:54 pm

I’m afraid that our Archbishop Emeritus has been saying more or less whatever the ruling class in the Western World wants for quite a while. (Incidentally, if you look at the actual record of the South African TRC, it let absolutely all the biggest crooks off the hook while taking ferocious swipes at the anti-apartheid movement — so maybe dear Tutu has been on the Western corporate payroll for quite a while.)

Look on the bright side, folks. Making a silly song and dance about how we’d jolly well like to string up Mr. Bashir (but we can’t, so we’ll write about it) is a whole lot better than firing Cruise missiles into Khartoum or actually invading, which the British government was talking about doing last year IIRC.

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