Ocampo’s Gauntlet to the UN Security Council
Tragedy is the conflict of rights and there is no greater and more painful tragedy than the clash of fundamental rights. This drama is about to be played out between the members of the UN Security Council and the International Criminal Court.
The ICC was established under the Rome Statute of 2002. The case of Darfur was referred by the UNSC in April 2005 under Resolution 1593. It is a powerful weapon in the international arsenal for responding to grave violations. And it is independent. Once armed, it is a self-aiming weapon. That is how it should be.
Three years ago, the Chief Prosecutor of the ICC, Prof. Luis Moreno Ocampo, took aim at Darfur. There is no need to recount the challenges he faced. The Sudan Government has been worse than uncooperative, it has been deliberately provocative. As an act of bravado, a calculated insult to the ICC and the international community, the indicted minister Ahmed Haroun was transferred to be Minister of State for Humanitarian Affairs and put in charge of various UN and human rights files. Ocampo threw down the gauntlet. Bashir picked it up.
Khartoum is now viciously attacking the ICC, pre-emptively accusing the Prosecutor of responsibility for a future war in the country. On moral and legal principle, the Sudan Government is utterly wrong on this. If there’s a new war, it will be the fault of whoever starts it on the ground in Sudan, not the ICC””irrespective of how ICC actions may have changed the political calculations of the belligerents.
But that’s not where the moral and policy challenges lie. Ocampo has also thrown down the gauntlet to the UN Security Council and especially the U.S., Britain and France. Unlike the Sudan Government, they have not yet picked up the gauntlet””or even recognized the dilemma coming their way. But when they do so, they will face the question, what policy objectives are they ready to compromise or sacrifice to the pursuit of justice?
I have argued elsewhere that the priorities of peacemaking and deploying a civilian protection force came into conflict. Now I fear that the priorities of accountability for human rights violations and peace will contradict one another. Julie Flint, Sara Pantuliano and I published a short letter on this in yesterday’s Guardian in London.
In Courting Conflict: Justice, Peace and the ICC in Africa, Nick Grono and Adam O’Brien ask:
What happens””and what should happen””when efforts to prosecute perpetrators of mass atrocities coincide with a peace process?… One common and convenient response is to hide behind truisms and make general statements of principle to the effect that no trade-off is required because peace and justice are inextricably linked. Clearly peace and justice are complementary in that justice can deter abuses and can help make peace sustainable by addressing grievances non-violently. But good things don’t always go together, and to present peace and justice as invariably mutually reinforcing is misleading and unhelpful when the difficult reality of peacemaking often proves otherwise.
Those who advocate that peace and justice go together argue that it’s necessary to end impunity in order to deter future crimes. No well-meaning person could disagree with that principle. But despots are learning a different lesson: that it’s necessary to hang onto power at all costs, because the alternative won’t be a comfortable exile in oblivion but instead a prison cell. In 1991, Ethiopian dictator Mengistu Haile Mariam was offered the chance to flee to Zimbabwe. He took it and Addis Ababa was spared a bloody showdown. Robert Mugabe today has nowhere safe to flee except North Korea.
Another case is Idriss Deby of Chad. With the rebels at the gates of the presidential palace in N’djamena in February this year, the French offered him a plane to escape. He reportedly replied that he would rather die fighting and didn’t want a neighbourhood of the Chadian capital to be named after him, “Idriss Deby has fled.” The reference is to a quarter called “Hisséne Habré has fled.” Habré fled rather than die and now sits in a Senegalese jail facing more than one hundred counts of murder.
In the case of Sudan, it’s not only peace at issue. There’s also the deployment of UNAMID and UNMIS, the prospects of democratization, and ongoing humanitarian programmes.
If the Government of Sudan is a criminal enterprise, indicted by the prosecutor of the highest international court, can the UN sustain its agreements and maintain its cooperation? Can governments which support the ICC dispatch ambassadors and maintain official aid programmes?
There are two mechanisms which can be used to make the ICC’s activities compatible with other objectives. One is internal. Prosecutions should be in the interests of justice and the victims. That judgement call falls upon the Prosecutor. Unlike a district prosecutor, he picks and chooses his cases. This makes his activities intrinsically political. Where many crimes have been committed””such as Darfur or the Democratic Republic of Congo””who is to be investigated? How to balance between the low-level perpetrators and the commanders? How to balance between the different sides of a conflict? How to choose between the different kinds of crime committed””murder, rape, torture, recruitment of child soldiers? Given the limited resources of the ICC these are almost impossible choices. And indeed, why should it be the task of a Prosecutor to make such delicate political judgements?
The second mechanism is external. Under Article 16 of the Rome Statute, the UN Security Council can defer an ICC investigation of prosecution for twelve months. It cannot block it entirely or suspend it indefinitely””merely defer for a (renewable) year. There is no sign that the UNSC is contemplating using this power. In the discussions following Ocampo’s six monthly report to the UNSC last week, not one ambassador drew attention to a potential clash between the worthy goals of peace and justice. It is unthinkable for Britain or France to propose a resolution to defer ICC prosecutions on Sudan. China is playing safe in advance of the Olympics. The U.S.””which opposes the ICC on principle””is in the weakest position to propose anything. If Ocampo’s strategy is to put the U.S. in a position in which it is compelled to support the ICC, he has chosen his moment well.
Ocampo is forcing the hand of the UN Security Council. When he issues his indictment next month against a man who instrumented Haroun, he will compel the international community to confront its toughest decision on where its priority lies. Which will prevail: the pursuit of justice no matter what, or the negotiations to secure peace and democracy? Or can a way be found to reconcile these objectives?