It's Easy to Argue for Justice from Thousands of Miles Away

by Michael Bear

category: Humanitarian Relief

Published November 14, 2008 @ 12:08AM PT

My genocide compatriot Michelle argues that we shouldn't suspend the current International Criminal Court (ICC) indictment proceedings against Sudanese President Omar Bashir.

As she puts it, "the potential ICC indictment creates the first real leverage to marginalize the regime and bring the conflict [in Darfur] closer to an end."

As with anything, though, it's all a question of what you're willing to risk.  In this case, we're talking about risking the lives of millions of people in Darfur who rely on humanitarian assistance in order to survive.

Michelle responds: "Millions of lives may be at stake if an indictment is handed down, but those same millions of lives are still at stake if the conflict continues on in perpetuity."

An excellent argument, save for one thing - from a humanitarian perspective, we're not even close to a worst-case scenario.  For the most part, the Sudanese Government has not unleashed large scale attacks against the millions huddled in IDP camps.

Yet just because the Sudanese Government hasn't yet moved against the camps (which they see as supporting the rebels) doesn't mean that they'll continue to show the same restraint, especially if they feel that they have nothing to lose.

I don't like the Sudanese Government, and I certainly hope there's space in one of the lower circles of hell reserved for Mr. Bashir. But it's easy to argue for justice when you're thousands of miles away.  The human rights community advocates for how things should be.  The humanitarian community has a somewhat different task - trying to keep people alive today, this week, this month.

The status quo is horrific.  But sometimes the alternatives are even worse.

More in-depth argument contra-Michelle after the jump:

On July 14th, the Prosecutor for the International Criminal Court submitted an application for an arrest warrant against Sudanese President Omar Bashir.  The warrant states that Bashir bears criminal responsibility for the crime of genocide, crimes against humanity, and war crimes.

The debate now is whether the UN Security Council should invoke Article 16 of the Rome Statute, suspending an ICC investigation or prosecution for one year, as the Sudanese Government is desperately arguing.  (Surprise, surprise.) So far, both the Arab League and the African Union have come out in favor of invoking Article 16. (Again, surprise.)

Perhaps the most powerful argument for continuing the prosecution was put forward by John Prendergast of the Enough Project, who wrote:

"Skeptics warn that the ICC’s action against Bashir may cause Sudan to implode. 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...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."

The fundamental problem with this argument, however, is that it assumes that the situation couldn't get worse.

Granted, the current situation in Darfur is horrific.  There are now 2.7 million internally displaced persons (IDPs) in Darfur, and the number continues to rise.  At the same time, humanitarian access - the ability of humanitarian agencies to reach those in need - has deteriorated.  Today, humanitarian access is down to 65%, as low as it's been for two years.

But that doesn't hide the fact that, from a humanitarian perspective, we're not even close to a worst-case scenario.  For the most part, the Sudanese Government has not unleashed large scale attacks against the millions huddled in IDP camps.

(There are exceptions, of course - for instance, Government troops attacked Kalma camp in late August, killing and wounding a large number of civilians.)

Hundreds of thousands of people have already been killed, but the vast majority of these deaths occured early in the conflict.  It's been years since we've seen killings on that scale.  All of which could change if the Sudanese decide they have nothing to lose.

Similarly, although humanitarian agencies face crippling bureaucratic impediments, the fact is that they are for the most part able to operate.  According to the most recent UN Darfur Humanitarian Profile, the UN, the International Committee of the Red Cross (ICRC) and NGOs delivered food to 3.4 million people in Darfur last month.  Almost 2.5 million people had access to primary health care.

A concerted attack on large IDP camp like Kalma, which houses as many as 90,000 people, could make Srebrenica seem like a day in the park. If the Sudanese Government ever did force the UN and NGOs to leave, then millions of people would risk starvation.

It's easy to argue for justice.  It's tempting to argue that anything that gives the international community leverage over the Sudanese Government - leverage which could be used to end the conflict - is worth the price.

But let's not mince words - we're gambling with hundreds of thousands if not millions of lives.  My excellent co-blogger argues that "millions of lives may be at stake if an indictment is handed down, but those same millions of lives are still at stake if the conflict continues on in perpetuity."

Which is easy to argue from here, from the States or from Europe.  It's harder to argue when you're actually faced with the task of keeping millions of people alive today, this week, this month. Especially when the ruling Sudanese National Congress Party itself has said that the ICC's actions would lead to more "more violence and blood" in Darfur.

Furthermore, just because the Sudanese Government hasn't yet moved against the camps (which they see as supporting the rebels) doesn't mean that they'll continue to show the same restraint if the prosecution goes forward, and if a warrant is actually issued.

As Michael Davies has pointed out: "I do believe the worst case remains a serious possibility. It is just that the decisive moment is not the prosecutor’s announcement, but will be the decision of the judges to grant arrest warrants: the point where President Bashir’s legal status changes from ‘free’ to ‘fugitive’."

Finally, what do we actually accomplish if the warrant is issued?   We have leverage now because the Sudanese have something to gain - it's in their interests to compromise, with the hope that such compromises will convince the Security Council to suspend the prosecution.

For instance, Sudan's Foreign Minister said that Sudanese Government's announcement yesterday of a unilateral ceasefire in Darfur was meant to try and convince the Security Council to defer the prosecution.

Once the arrest warrant is issued, however, this leverage disappears, or at least diminishes.  By invoking Article 16 and suspending the prosecution for one year, we can at least continue to hold a threat over Bashir.

Granted, this is not perfect.  Nothing is perfect.  There is no simple answer.  If the Security Council suspends the proscution for a year, then Bashir will conclude that perhaps the ICC isn't such a threat at all.

I wish I had an answer.  I wish I had a suggestion for how we create some sort of peaceful settlement.  But I don't.  And I'm not sure that anyone else does, either, at least not as long as the National Congress Party remains in power, and the rebels remain fractured.  This focus on the ICC seems like clutching at straws.  Which is fine, as an academic exercise.  It's something quite different when you're gambling with millions of lives.

(For an excellent explanation of ICC procedures and the case against Bashir, see here.)

[Photo of Darfur from Amnesty International / Lynsey Addario]