Where justice is the enemy of peace

The long-awaited decision by the chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, to indict Sudanese President Omar Hassan Ahmed Bashir on genocide and war crimes charges has been greeted with relief and satisfaction by the vast majority of people haunted by the tragedy of Darfur.

For Darfur activists -- and no African cause since the movement against apartheid in South Africa has had such reach or influence -- Bashir is the architect of what they are certain has been a genocide just as surely as Adolf Hitler was the architect of the Holocaust. And if this is true, they argue, it would be immoral not to try to bring Bashir and other central figures in the Khartoum dictatorship to justice. Some of these campaigners argue that the indictment represents the first significant step toward an effective regime of international justice in which world leaders guilty of crimes against humanity will no longer enjoy the kind of impunity that they have had in the past.

Attractive as these arguments are, and counterintuitive as it may seem to oppose them, they are nonetheless deeply flawed. To begin with, the bedrock assumption of those committed to the concept of international justice represented by the International Criminal Court is that peace and justice are almost always compatible goals -- and that, on the rare occasions when they are not, justice should have priority.

But in reality, there is no reason to believe this is true. Indeed, the example of post-apartheid South Africa illustrates this perfectly. Real justice would have demanded that the leaders of the white racist regime pay for their crimes; peace, on the other hand, demanded an accommodation. The moral genius of the African National Congress was to understand that peace was what the newly liberated country needed, not civil war, and so instead of trials there was a Truth and Reconciliation Commission in which, in exchange for confessions, the authors of the horrors of apartheid were effectively let off scot-free.

There is also the example of post-Pinochet Chile. Few observers of that country seriously believe that Gen. Augusto Pinochet would have stepped down in 1990 if he had believed that he would be required to face a war crimes tribunal, or that the Chilean military would have agreed to the return to democracy. Patricio Aylwin, the president of Chile during the transition, made the bargain all but transparent when he remarked, “We will tackle the excesses of the past,” adding, “within the realm of the possible.” Like the ANC, Aylwin understood that justice cannot and should not always be the first priority, much as one might wish it otherwise.

Those who have welcomed the indictment of Bashir set a great deal of store on the importance of memory and of truth, but it sometimes seems as though it is they who have forgotten these hard lessons of the recent past, in which it became clear that the sensible course was to acknowledge that peace was more important than justice when it came time to choose.

Would it be emotionally satisfying to see Bashir in the dock? Of course it would. After all, most of us who believe that this indictment is a tragic mistake also believe that, under settled international law, the Sudanese president is guilty of crimes against humanity (whether Darfur is a genocide is a separate issue, but even if it is not, as groups like Doctors Without Borders have argued, the crimes against humanity committed at Bashir’s behest are more than bad enough). At least 200,000 people have been killed in the Darfur conflict, according to most estimates, and most of those deaths have been attributed to militias unleashed by Bashir’s government to quell the insurrection.

But the question remains: Is Bashir’s indictment worth it or, to put the matter even more starkly, is the price that the Darfuris almost certainly will pay for this indictment (if the International Criminal Court’s judges allow it to go forward) really worth it? After all, it is not as though the ICC has an army or even a police force that can go to Khartoum and seize him. Indeed, even the use of phrases like “bringing Bashir to justice” raises the question of who is actually going to do this. Yes, if Bashir decides to take a trip to a European Union country, he would probably be arrested and turned over to the ICC, but that seems extraordinarily unlikely at this point.

No matter how many times advocates of the new norms of international law claim otherwise, and insist that there has been a sea change in the extraordinarily disparate group they call the “international community” (even though presumably the term encompasses both Canada, where the ICC got its start, and China, Sudan’s great ally), the reality is that it is virtually inconceivable that Bashir will actually be apprehended and put on trial. To believe differently is to vastly overestimate how much has changed in the world.

One thing that has not changed is that there are really only two viable ways to end a war. The first involves total victory a la World War II; the second involves a negotiated settlement. Were those who welcome the Bashir indictment to also state firmly that they favor the first option -- that just as nothing short of Hitler’s and Tojo’s fall would do, so only the fall of the Khartoum dictatorship is an acceptable outcome -- that would be one thing. But with a few honorable exceptions, notably one of the leading Darfur campaigners, Smith College professor Eric Reeves, few have been willing to do so. And if all-out regime change is not the goal, then to secure a peace in Darfur means negotiating with Bashir rather than fantasizing about arresting, trying and imprisoning him.

The truth is that “we” -- whether that amorphous word refers to the United Nations, the U.S., NATO or the African Union -- are not going to wage that kind of war on Sudan. And because we are not, why is there so much satisfaction at the prospect of making these negotiations more difficult, as even some of the Darfur activists themselves concede the ICC indictment may have done? A harsh question: Is this about helping bring peace to Darfur or is it about furthering a political vision of the world, one based on human rights as the categorical political and, above all, moral imperative no matter what the real-world consequences?

The human rights triumphalism that has accompanied the indictment also perpetuates some dangerous over-simplifications about what is going on in Darfur at this moment.

In 2004, it was still possible to describe the conflict as a murderous campaign by the government of Sudan and its janjaweed surrogates against the Darfuris. In 2008, the conflict has morphed into a war of all against all, with Darfuri rebel groups fighting each other and schisms opening between groups loyal to Khartoum.

This reality may not fit the morality play that Western “human rightsists” want to believe is unfolding, but it is the core of the matter nonetheless. Doubtless, Bashir is part of the problem; he is in no sense all of it.

In fairness, there is a valid argument to be made that the peace process in Darfur is stymied and that those who favor peace over justice will end up getting neither. Perhaps. But surely it would make more sense to try to restart negotiations in a serious way with Bashir and his government than to indulge in “Count of Monte Cristo”-like fantasies of the wicked getting their comeuppance. Things do not work that way in our fallen world, and it is pure self-indulgence to act as if they did.