To put justice before peace spells disaster for Sudan
by Julie Flint and Alex de Waal
The overzealous pursuit of Omar al-Bashir could ruin years of diplomatic progress. The human cost will be massive.
After seven months' deliberation, the judges of the international criminal court finally issued an arrest warrant for Omar al-Bashir, the Sudanese president, this week. Their appeal for retributive justice, in the form of charges of war crimes and crimes against humanity committed in Darfur, was solemnly echoed in European and US capitals, and universally by rights organisations and activist groups. Within hours, however, the Sudan government showed that the court and its backers were powerless to defend or feed the millions of Darfurians in whose name justice is being sought. It summarily expelled the biggest international aid agencies, seized their assets, and closed down Sudanese human rights organisations at gunpoint.
As fuel to run the water pumps in Darfur's massive displaced camps runs low and the worst meningitis epidemic in a decade spreads with lethal speed, the Sudan government will be responsible for the deaths and suffering that will result - not only in Darfur, but in other parts of Sudan where relief work is now curtailed, including the drought-stricken eastern region.
But it was the ICC prosecutor who set the match to the dry tinder that is Sudan. It is quite extraordinary that Luis Moreno-Ocampo and a host of diplomats and activists were capable of condemning the government for the most hideous crimes with one breath and asserting with the next that it would tamely change its spots when threatened with standing trial in The Hague.
In truth, no one knew what the arrest warrant would mean. Rights groups who had supported an independent, permanent court kept their concerns private. Activist commentators and lawyers, often with little knowledge of Sudan, cleaved to the mantra that there is no peace without justice. Warrants against Slobodan Milosevic and Charles Taylor (the former presidents of Yugoslavia and Liberia) had contributed to their speedy overthrow, Geoffrey Robertson argued, and would do the same to Bashir. But Milosevic and Taylor were weak, and the west wanted them gone. Bashir has fought off all challenges for 20 years, and the west has been supporting a fragile and hard-fought peace agreement that kept him in power as the quid pro quo of a transition to democracy.
All this now hangs by a thread. The risks were real, and they were inflated by the way in which Moreno-Ocampo insisted on pursuing Bashir for "ongoing genocide" with, he claimed fantastically, 5,000 people dying a month.
One of our reasons for opposing an arrest warrant when the application was made last year was that the case for genocide was based on flimsy evidence and weak argument. He repeatedly said, with no evidence whatsoever, that the government was orchestrating "systematic" attacks on the camps to "eliminate African tribes" there. In an encouraging indication that the ICC judges took their job seriously, and had a better command of the facts, they rejected his three charges of genocide, finding that he had failed to demonstrate that Bashir had a case to answer there. This was a stunning rebuff to Moreno-Ocampo, who has insisted in public more than once that Bashir is guilty of genocide and must be removed from office.
Worse, the prosecutor hinted - again repeatedly - that he got his information from humanitarian agencies. The damage done by this is incalculable. Sudanese security believes international agencies have been passing information to the ICC. So far, 11 agencies have been ordered out. Their humanitarian infrastructure has been dismantled and their assets seized. The UN agencies are still there. For the moment. But the World Food Programme relies on two now absent NGOs - Care and Save the Children - to distribute 80% of its rations. Will Khartoum allow the WFP to build a new food distribution infrastructure - a task of many months? Or will it simply insist on doing the job itself? Most likely the latter. Meanwhile, in addition to epidemics and a hunger season, Darfur faces the likelihood of violence as rebels and government militias respond to the new uncertainties by tearing up the local peace agreements that have kept much of Darfur stable for three years.
Last year, according to UN figures, about 150 Darfurians died every month in violence. Fewer than half were civilians; the others were soldiers, militiamen, bandits and rebels. Things could get worse, much worse. There is good reason to believe the aid agency expulsions are only the beginning. Those who have argued that the Sudan government responds to pressure make a critical mistake. Pressure works if the party under pressure can agree with the end point. If that is life imprisonment, pressure only generates counter-pressure. For Khartoum, Moreno-Ocampo's ultimatum is not negotiable. It is a fight to the death.
International justice is a virtuous enterprise, but not risk-free. Sudanese people are already paying a high price for the abandonment of the diplomatic approach that has yielded such benefits over the last four years. We fear there is more to come: NGO expulsions, actions against UN staff members and, worst of all, a go-slow or reversal of commitment to elections and self-determination for Southern Sudan. There will be no justice in Sudan without peace. When peace and justice clash, as they do in Sudan today, peace must prevail.
Julie Flint and Alex de Waal are the co-authors of Darfur: A New History of a Long War
This op-ed first appeared in the Guardian (6 March 2009) and is republished here with the authors' permission.