The Case for Indicting Bashir

by Kevin Jon Heller

I have been going back-and-forth with myself about the wisdom of indicting Bashir for genocide.  I continue to believe that the move is a risky one in the short term, given the likelihood that the Sudanese government will respond to the indictment with violence against the peacekeepers and the humanitarian workers in the country.   Nevertheless, I find the following defense of the Prosecutor’s move by Enough, a project associated with the fantastic Center for American Progress, to be very persuasive:

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.

On the contrary, the only way by which the fundamental dynamics of conflict in Sudan will change is by introducing accountability. President Bashir’s behavior in Darfur was predictably consistent with the way he presided over a war strategy in southern Sudan that led to seven times as many deaths. In waging its conflicts, the Sudanese government has repeatedly employed a strategy of divide-and-destroy at multiple levels of society, arming neighboring militias against each other to create a flimsy sense of plausible deniability that they were not directing the violence. No one on the ground had any illusion about the Sudanese government’s criminal behavior, and neither should the international community. Human rights violations committed by rebels in Darfur and the South should not distract attention from the culpability of the Sudanese government in deliberately directing the great majority of these atrocities.

[snip]

The case against Bashir introduces three new elements into the Darfur equation: leverage, deterrence, and protection. How they are utilized by the international community will help determine whether or not a solution for Darfur is at hand. Until now, the UN Security Council and powerful states have done little in the way of building direct leverage that can be utilized in support of either peace talks or protecting civilians on the ground. Although the ICC remains independent of the Security Council, there are means by which its investigations can be suspended or its targets given security assurances in exchange for a binding exile.  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. After Moreno-Ocampo presents his case, the ICC judges will most likely take several months to make a decision on issuing a warrant for arrest. During this time the Security Council should vigorously build leverage in support of a peace deal and deployment of peacekeepers. Equally, the Security Council needs to understand that any effort to derail justice or interfere with the chief Prosecutor’s work would be a disaster.

Deterrence is also a positive new potential factor. Proper follow up to Bashir’s warrant could deter future perpetrators of crimes against humanity in Sudan.

Least discussed but potentially most important are the implications the arrest warrant will have for protecting civilians. The record shows over the last two decades that General Bashir’s regime has backed off its most deadly war strategies when international pressure has been well coordinated and at its high points. When the spotlight was on the regime’s use of food as a weapon, it relented. When the pressure focused on ending bombing of civilians in the South, it stopped. When the temperature went up over the regime’s facilitation of a resumption of slavery, it abandoned its strategy and slave-raiding ended. Putting the spotlight on Bashir provides a significant point of pressure that if backed by key governments and the UN Security Council could lead to real protection for the civilian population.

Enough also points out that unlike in Uganda, where popular sentiment is mixed — although opponents of the ICC often grossly overstate Ugandans willingness to let Kony and his henchment go free — the vast majority of Darfurians want the government officials responsible for the atrocities to be prosecuted:

Absent from all too many discussions about peace and justice in Darfur is the voice of the Darfurians themselves. In our visits to the region, from reports coming from inside Darfur as well as the Darfurian diaspora, the people of Darfur stand united behind the demand to end impunity. Despite the many divisions among Darfuri groups that have slowed progress toward a viable peace in Sudan, our research has found that Darfuris speak with one voice on several issues. The demand for justice is one which has galvanized Darfurians even amid dire circumstances.

The people of Darfur demand that the government of Sudan adheres to the rule of international law by arresting and surrendering suspects to the ICC. They are very clear on who they think was the perpetrator in this case. In numerous videos and documentaries filmed inside Darfur or in the refugee camps, displaced Darfuris squarely place the blame on the government of Sudan. Some people mention the name of President Bashir as the culprit, others mention Director of National Intelligence Salah Gosh and other state officials, but the message is clear: It is the regime that is responsible for the genocide.

Many Darfurians realize that it is impossible for the ICC to prosecute every alleged genocidaire in Darfur. They posit a solution whereby the ICC prosecutes the worst offenders, while serious reform to the Sudanese justice system enables it to handle the cases of the lower ranks of implicated persons.

ICC charges against Bashir, or any high-level official from his government, will be welcomed by Darfurians of all walks of life, because to them it represents the first step in ending impunity, and a hope for closure to a life of misery that seemed endless. It would also be a recognition from the international community that justice for Darfur will be served, even if it was delayed for a while.

Enough makes a compelling case.  Readers?

Hat-Tip: Mark Leon Goldberg at UN Dispatch.

http://opiniojuris.org/2008/07/14/the-case-for-indicting-bashir/

3 Responses

  1. This whole debate seems strange to me. We’re talking about a crime against humanity. Other than lack of evidence, there shouldn’t be any reason to avoid prosecution.
    It’s not us who should be afraid of the outcomes of Bashir’s prosecution. It’s him who should be afraid.

  2. Agreed – Luis Moreno-Ocampo has shown some courage here that places a marker for the political leadership of the world. We should celebrate it and call on our respective governments to help the ICC bring Bashir to justice!
    Best,
    Ben

  3. While I understand what you are saying Guy, surely it is appropriate to consider the fuller political circumstances when deciding if this was a good or bad thing. I’m also very divided on whether this is a good or bad idea, but can certainly appreciate that we need to consider what impact this will have on the peace process, on mediation, on the warring parties and on those still being injured by the conflict.

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