George Kennan said, “The important thing in thinking about international affairs is not to make moral judgments or apportion blame but to understand the nature of the forces at work as the foundation for thinking about what, if anything, can be done.” In the case of Sudan’s president, Omar al-Bashir, such a pragmatic approach can be difficult to stomach. But it is vitally necessary.
A year and a half ago, the International Criminal Court, or ICC, charged Bashir with war crimes and crimes against humanity. After the Court added genocide charges this past July, ICC Prosecutor Luis Moreno-Ocampo wrote in London’s Guardian that the Security Council must “End this Darfur Denial.” Tellingly, he did not speak of ending the genocide, but only of arresting and trying Bashir. He offered no evidence that doing so would lessen the suffering of victims or refugees. On July 27, the African Union AU, lamenting Ocampo’s “egregiously unacceptable, rude and condescending statements,” proclaimed that its members “shall not cooperate with the ICC in [Bashir’s] arrest and surrender.” This longstanding debate, in which immediate prosecution defines the terms of success or failure, helps no one but Bashir, and guarantees protracted suffering for the Sudanese people.
As a prosecutor, Ocampo sees his role as “ensur[ing] justice for… the victims of genocide.” Indeed, international criminal courts rarely see preventing victimization in the first place as part of their mandate. The most recent example is the Khmer Rouge tribunal in Cambodia, where trials are being held 30 years after the world’s failure to prevent mass slaughter. This same pattern of contemporaneous inaction followed by retrospective blame placing can be seen in Yugoslavia, Rwanda, Sierra Leone, and East Timor. But Sudan is different.
In previous tribunals, the conflicts were already over, the bodies were in the ground, and the court’s only task was to collect evidence and affix blame. In Sudan, this is far from true. Although outright slaughter in Darfur has ebbed, the country clings to a delicate peace, with millions remaining refugees in their homeland. Renewed violence, possibly sparked by the pending southern referendum, could create thousands if not millions of new victims. In light of this, Sr. Ocampo’s duty to build a case against Bashir and his accomplices must be weighed against the Security Council’s bedrock obligation to prevent and respond to “any threat to the peace, breach of the peace, or act of aggression.” Where an immediate prosecution could reignite a smoldering conflict, the Council can and must step in.
As recently noted by the Enough Project, the Security Council may request a suspension of an ICC investigation for renewable periods of one year if doing so could result in concrete, demonstrable steps towards peace. Thus, it can impose any number of conditions on Bashir, including a peace deal in Darfur, full implementation of the CPA, and respect for the southern referendum, among others. If these are not met, the indictment could be reinstated, with the ICC having briefly lost time, but not evidence or jurisdiction. The chance for peace is well worth such a tradeoff. A temporary deferment would also allow AU countries to become more directly involved in the peace process without contravening their duties as ICC signatories.
The promise of this strategy lies in its emphasis on saving lives before securing convictions. It would not satisfy Ocampo’s zeal for a speedy trial. Nor would it placate those AU nations that would only accept Bashir’s prosecution in an African court. But it would, as Kennan counseled, be based on “understand[ing] the nature of the forces at work as the foundation for thinking about what, if anything, can be done” for those who still suffer and survive. To do otherwise, clinging to political principle while millions still suffer, would be unconscionable.
James Bair is a graduate of Northeastern University School of Law in Boston, MA. He helped establish the Victims Unit at the Extraordinary Chambers in the Courts of Cambodia and has published on the rights of victims under international criminal law.