Today's date:
Winter 2009

Prosecute Sudan’s Leader Over Darfur

Lloyd Axworthy was foreign minister of Canada from 1996 to 2000.

Winnipeg, Canada—Finally, some good news for Darfur: An arrest warrant for Sudan’s president, Omar al-Bashir, may soon be issued by the International Criminal Court (ICC). But Sudan and its allies are arguing that the United Nations Security Council must intercede to suspend the court’s work. They contend that applying the rules of justice will make it more difficult to negotiate peace in Darfur.

My experience has shown that peace and justice can coexist—and that peace unleavened with justice is impossible to attain.

In May, 1999, I was holed up in a drafty castle outside of Cologne with other g-8 foreign ministers. We were charged with the seemingly impossible task of bringing an end to the conflict in Kosovo. For weeks, Serbian President Slobodan Milosevic had been playing us as part of a public relations game and showed little serious intent to commit to peace processes. Frustration was mounting.

Then one night at dinner I received a note from Louise Arbour, prosecutor for the Yugoslav tribunal, informing me that she planned to indict Milosevic and four of his cronies for crimes against humanity and war crimes committed in Kosovo. When I shared this information with the other ministers, the reaction I got was similar to the reaction of many to the prosecutor’s request for a warrant against Bashir: moaning and groaning. They were certain that peace talks, which already lacked traction, would be completely derailed by the indictments.

Undoubtedly, had there been a mechanism enabling the Security Council to block the prosecutor’s action against Milosevic, some would have pushed for it. The argument for intervention would have been the same then as is being used now with Sudan: that justice will get in the way of peace.

Fortunately, deferral was not an option and the charges against Milosevic were allowed to stand free from political interference. The results surprised many. Within days of the prosecutor’s announcement of the indictment, Milosevic was at the bargaining table. We had an agreement on terms in a matter of hours and in a week the deal was sealed. I, and others, believe that rather than hindering negotiations, the indictment was a catalyst propelling negotiations forward.

In Uganda as well, the possibility of criminal prosecution affected the dynamics of peace negotiations in an unexpected way. When the International Criminal Court prosecutor announced he was investigating the crimes in northern Uganda, many there—desperate for an end to the brutal and lengthy civil war—feared that prosecutions would thwart any hope of peace. They believed that rebels would rather wage war than face trial, and that local communities could be subject to retaliatory violence.

Instead, crimes in northern Uganda decreased, perhaps out of concern that such crimes were within the court’s jurisdiction—and under its microscope. In addition, the indictment played a role in bringing the rebel group, the Lord’s Resistance Army, to the table for the most serious peace negotiations up to that point. The court’s involvement had the additional benefit of making it more difficult for third parties such as Sudan to continue to support the rebel group. Assumptions about the effect of justice on a conflict situation were proven wrong again.

The Security Council must now resist the temptation to interfere with court proceedings as it grapples with the situation in Darfur. The United States has so far taken a principled approach to this issue. In July, the Security Council inserted language taking note of some council members’ concerns about the prosecutor’s request into a July resolution that extended the mandate of the Darfur peacekeeping mission. The US rightly abstained from the vote, arguing that the text sent the wrong message to President Bashir and would undermine efforts to bring him and others to justice.

The US must now follow through and make clear it will veto efforts to suspend ICC prosecutions. There is no indication that suspending justice will bring about peace in the region. Furthermore, the long-term consequences of a Security Council deferral could be devastating: It would undermine the efforts of the last two decades to curtail impunity for these crimes and send a message to those who commit massive human rights abuses that they can indeed escape justice.

The ICC was conceived of as an important mechanism for protecting civilians against atrocities. If people responsible for massive crimes are actually held to account, others may make different decisions when weighing the costs of their actions. If the Security Council allows itself to be blackmailed into suspending its first referral of a situation to the ICC, the value of justice as a tool to combat dictators and vicious rebel groups will be seriously diminished. In the interests of global peace and security, the US must stand by its commitment to justice for victims in Darfur.