The Peace Versus Justice Debate
The humanitarian community and the aid worker blogosphere are afire with responses to the ICC indictment of Sudanese President Omar al-Bashir – which was a long time coming – and the subsequent expulsion from Sudan of at least 10 major NGOs currently working in Darfur – which was pretty much immediate. The general consensus seems to be: it was a stupid idea, and we knew it would have terrible consequences.
In some respects, this line of thinking is entirely correct. From the humanitarian perspective there are many, many arguments against indicting Bashir, and the Sudanese government’s response – coming down hard on humanitarian organisations as a way of drawing attention away from how politically impotent they are – was entirely predictable. The government will kick you out of the country at the drop of a hat, and one of the key factors in undermining organisation and staff confidence has been the uncertainty about whether your next action might see you on the next plane out of there.
The debate focuses on whether peace or justice comes first, and most people agree that peace must take priority. Not least of those people are those in Darfur themselves – the priority of most communities displaced by war is to regain some sort of security so that they can rebuilt their lives.We have conflicting reports of the response in Darfur – on the one hand Reuters gives us:
Darfur activist Hussein Abu Sharati, who says he represents residents of 158 displacement camps, said most people there were overjoyed by the ICC’s decision, but were too scared to show it.
While Rob Crilly reports that, of those in the camps,
Few have time for this debate. Few have heard of the International Criminal Court. Those that have are worried the government will come down hard on anyone celebrating Bashir’s indictment. And most seem to think that going home is more important than anything else.
These two perspectives are not mutually exclusive, since IDPs are rarely a homogenous body of opinion. Frankly, however, I’m in a difficult position. I welcome the expansion of the mechanisms available for extending (and hopefully enforcing) human rights law, but at the same time I don’t want to see communities in Darfur suffer any more than they already have. Given what’s happening now, how can I reconcile those two?
The short answer is that I don’t think I can. I think I have to make a choice and come down on one side or the other. The side I choose is the side that presses for justice, no matter how ill-conceived it might be. My reasons are cloudy, even to myself, and I hope that I can clarify them over the next few weeks. The feeling that drives this is the same feeling that drove me into humanitarian work in the first place – first a desire to prevent genocide, then a desire to see justice done more generally, finally translated into the practical action of humanitarian work. It wasn’t the perfect match, but it was close enough.
I understand the Thirsty Palmetto’s frustration with those who argue that you can’t make an omelette without breaking some eggs, and I have no desire to be painted as the sort of person who’s willing to gamble with people’s lives in order to prove their point. Yet it’s vital to remember one thing here: any suffering that occurs in Darfur is the responsibility of the Sudanese government. They are the ones who have failed the citizens of their country, and I’m not prepared to feel any more guilty about the situation in Sudan than I’m prepared to feel guilty about any other humanitarian crisis.
One reason not to feel guilty is that it’s exactly what the Sudanese government is banking on. Generally speaking, the government does not particularly care about its citizens, and the reason that UN and NGOs were allowed to operate in Darfur in the first place was because it suited their broader political purposes. Their calculus was that our self-imposed sense of responsibility would outweigh our sense of anger, that we would continue to work in appalling conditions to help people whose terrible lot was unlikely to get better any time soon – and more, that we wouldn’t kick up too much fuss about the role of the government in perpetuating that lot.
This is a difficult line to walk, and it’s one which the humanitarian community wrestles with continually in every complex emergency, one way or another. Yet one of the reasons that we continue to wrestle with it is because there have been no mechanisms which might really bring the justice that we want to see. The ICC might not be that mechanism, but I find it impossible to discount. At the same time, I don’t feel very comfortable standing alongside those standing outside the humanitarian situation entirely; perhaps the reason is because it feels like giving up the sense of solidarity that is vital for humanitarian work.
So I swing back to the other side: the unforeseen consequences (and the foreseen consequences, for that matter) from the indictment are potentially colossal, and not necessarily in the best interests of the people of Sudan. Some of those potential consequences I’m not that concerned about – the breakup of Sudan, for example, seems inevitable within the next 50 years (one for the prediction fans, there) – but some of them are serious enough to weigh against. Maybe I’m wrong – this isn’t the first stone in building an international order based on human rights, but a crisis in human rights that will pull the whole house of cards down. What choice do we have? These things have to start somewhere, and it’s hard to believe that the situation can get worse for the people of Darfur.
I told you I wasn’t clear, didn’t I? Oh well.
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I’ve got mixed feelings about this indictment as well. There’s merit in a lot of criticisms of the ICC, but it irks me that opponents give such credibility to the mediators who have brought little progress over the last 5 years and beyond.
Would you see it any differently if the genocide charges hadn’t been scrubbed out by the judges? This might at least validate the view Bashir really could be in the dock with history’s worst.
The government of Sudan hasn’t yet done anything it hasn’t already done before – we’re yet to see if they will sustain these objections for long, or if the balance of political convenience which kept humanitarian INGOs operational will ultimately reassert itself. The arrest warrant may get boring and irrelevant quickly – in practical terms little more than background noise to business as usual – so Bashir might as well get the punches in now and try to horrify us all.
Tom Longley
6 Mar 09 at 9:29
I don’t think the genocide charges can be supported, so it wouldn’t change how I feel. It’s a good point about the expulsion of NGOs being nothing new – it’s basically the only stick the government has to beat us with – but it’s a stick that we keep handing them.
Paul Currion
6 Mar 09 at 16:11
Gents –
Gotta part ways with you on this one. You both know where I work, so obviously I’m not an objective party.
The concept of international justice is great but it is purely academic without some sort of apprehension and enforcement mechanism. When I was setting up GBV programs in N. Uganda, we explicitly decided to forego a legal component to the program. Why? Because the legal system up there was so fragile, and so unreliable, that filing cases would expose the plaintiff to a high risk of retaliation, with no practical protections for her and no plausible expectation that the case would ever be tried. The risk to the victim outweighed the negligible prospects of a favorable legal outcome. So we took an approach of instead providing for the survivors’ health needs and facilitating protective social structures. To do otherwise would have been extremely reckless.
The ICC-Bashir case seems to be the same principle, multiplied by a factor of about 1.5 million. How is an unenforceable indictment of a mass murderer anything more than judicial masturbation?
Jem
7 Mar 09 at 4:16
I will adopt the role of devil’s advocate on this one, so please take this in that spirit:
The concept of international justice is great but it is purely academic without some sort of apprehension and enforcement mechanism.
The same could be said of the concept of genocide itself; in fact, that was exactly the sort of argument that Raphael Lemkin came up against when he was trying to get the concept accepted by the international community. I’m not saying that the argument has no merit – clearly we do need to have enforcement mechanisms. Yet if we agree that something is a crime, surely the question is whether we can set up an enforcement mechanism, not whether we should ignore the crime?
When I was setting up GBV programs in N. Uganda, we explicitly decided to forego a legal component to the program. Why?… The risk to the victim outweighed the negligible prospects of a favorable legal outcome. So we took an approach of instead providing for the survivors’ health needs and facilitating protective social structures. To do otherwise would have been extremely reckless.
Yes, but one could also argue that by failing to address the legal questions, your organisation perpetuated the status quo and returned the beneficiaries to the same legal limbo from which they came. I respect the practical considerations of your responsibilities towards your beneficiaries, but at the same time I am increasingly uneasy about a humanitarian ethos which essentially relies on keeping those beneficiaries in the dark about their rights.
The ICC-Bashir case seems to be the same principle, multiplied by a factor of about 1.5 million. How is an unenforceable indictment of a mass murderer anything more than judicial masturbation?
Because it sends a clear signal, not just to Bashir but to other heads of state who fail to take responsibility for the protection of their citizens. I am also coming to believe that the charges are as much a challenge to the international community to do something about actions which everybody agrees is unacceptable but which nobody will actually do anything about.
What it comes down to is this: “And if not now, when?”
Paul Currion
7 Mar 09 at 14:03
[...] Peter over at The Road to the Horizon and Paul at Humanitarian.info have write-ups (here and here respectively) covering the situation. Sadly, the only person covering the situation is a guy [...]
Crowdfunded news, Rob Crilly and Darfur | Aid Worker Daily
8 Mar 09 at 23:34
Jem –
“The concept of international justice is great but it is purely academic without some sort of apprehension and enforcement mechanism.”
The form of that mechanism has to be different to reflect things like the political possibilities and dynamics of the state system, and the systems and massive resources at the accused’s disposal. These people have nothing at all in common with perpetrators of regular, domestic crimes. It’s not a question of the good ol’ beat cop spotting something fishy, apprehending and handcuffing the bad guy anymore. It’s a deep game, where glacial processes of pressure and attrition are used, taking years to deliver results.
We also need to consider the aspirations of senior government officials: they have to do something after losing office, which they inevitably do. An ICC indictment affects the possibilty of a nice quiet, prosperous retirement, involving international travel. This must change the incentives of the now somehow, particularly for others in the political systems where indictees are the top dogs.
“How is an unenforceable indictment of a mass murderer anything more than judicial masturbation?”
Slobodan Milosevic and Charles Taylor hoped that was the case when they were Heads of State. The same arguments about unenforceability were wheeled out when their indictments were publicised as well, but the process eventually yielded a result. The beard spared Karadjic for a while, but there he is, in the dock, denying the charges and calling the system unfair.
Tom Longley
10 Mar 09 at 9:29
“Slobodan Milosevic and Charles Taylor hoped that was the case when they were Heads of State. … The beard spared Karadjic for a while, but there he is, in the dock, denying the charges and calling the system unfair.”
And over there is Charles Taylor, who could very well go free for reason of lack of funds for the tribunal.
Ho hum.
Michael Keizer
10 Mar 09 at 22:16
You shouldn’t dance on the Special Court for Sierra Leone’s grave quite yet. We should only worry on the day when an international prosecutor a) is happy and content, b) stops complaining about funds, and c) stops trying to portray the defence as morally bankrupt enemies of justice.
The SCSL made an error in moving Taylor’s trial out of Freetown in the first place, which was for non-disclosed “security” reasons, but I think was intended to have a cost-cutting effect as well (although I could be wrong there). It’s finances have been rocky since the preparatory missions before it’s creation. They’ve been fighting with donors every year to keep the core budget sorted. But it’s 5 years and counting, and the trials are still running…
Tom Longley
11 Mar 09 at 11:22
I sincerely hope you are right. Let’s keep our fingers crossed.
Michael Keizer
11 Mar 09 at 23:14
Recently, I was talking to an investogator at the Extraordinary Chambers in the Courts of Cambodia, and they were seriously fretting about money too. It’s not clear precisely what would actually be adequate for investigations of such scale.
However, these institutions are more robust than they seem: the political and financial investment made in them by states doesn’t disappear overnight. For example, Crimes of War, in 2006 about the Special Court finances:
“The current gap is astonishing: only nine million dollars have been pledged, and the court may run out of cash in the summer [2006] unless more money arrives.”
That was two years ago. Also see former ICTY Chief Prosecutor Carla del Ponte in 2004, about ICTY’s completion strategy:
“The third area of concern impacting on the completion strategy which is beyond our control is the provision of adequate resources to my Office.”
It’s far from perfect, but budget crisises are as much part of the international criminal justice setup as they are any other bureaucracy.
Tom Longley
12 Mar 09 at 9:55
[...] for the humanitarian relief efforts in Darfur. Check what Michael, Harry, Thirsty Palmetto, Paul, Scott, Peter and Rob have to say. (and check AidBlogs for [...]
What if a genocide indictment would lead to another genocide? – Scribbles
7 Sep 09 at 17:10