Can the ICC Bring Peace to Sudan?
The ICC is currently pursuing its fourth case since the Court’s inception, but has yet to enforce justice or foster peace in any of the cases it has taken on. Critics of the ICC have described the Court’s actions as futile and ineffective but, before dismissing the Court’s abilities, it is important to consider the value that the ICC can provide. Payam Akhavan, a former legal advisor to the Yugoslav tribunal in The Hague, has suggested that stigmatizing criminal conduct can promote post-conflict reconstruction and even legitimize the rules of international order. In the case of Sudan, the ICC has stigmatized Ahmad Haroun and Ali Kushayb by indicting these men for war crimes. Akhavan asserts that this stigma from the Court can lead to peace in three ways: by reducing the culture of impunity, marginalizing extremist political leaders, and discouraging victims from seeking vengeance. The ICC has yet to achieve these precursors to peace in any of the conflicts it has taken on but examining the Court’s past cases can provide insight into the progress it has made in achieving these effects in Darfur.
In the Court’s first case, against the LRA in Uganda, the Court’s inability to arrest and prosecute rebel leader Joseph Kony prevented the ICC from achieving the first precursor to peace, which is a reduction in the culture of impunity. Kony remains at large and has demanded amnesty from the Court before he is willing to end the conflict. The prospect of amnesty has increased the culture of impunity, which is the opposite effect that the Court should have on a conflict environment.
In order to achieve the second precursor to peace, the Court should serve to marginalize extremist political leaders by either removing the political leaders from power or forcing them to moderate their views. Clearly, neither of these goals was reached since Kony remains in command of his forces, which continue to be responsible for killing, mutilation and abduction.
The third precursor to peace that the Court was unable to achieve is to reduce victims’ need for vengeance. The legal theory states that if victims have confidence that the Court will punish perpetrators, they are less likely to pursue retribution through vigilantism, but may, instead, seek to resolve their grievances through the legal system. Uganda is an atypical case, however, because the absence of vigilante violence cannot be attributed to the ICC since few victims are aware of the ICC and its attempts to enforce justice. The lack of vigilante violence can, instead, be explained by victims’ desperation to end the decades of war and their reluctance to punish the multitude of LRA forces that are comprised of child soldiers.
In the case of Sudan, it is somewhat premature to comprehensively assess the Court’s ability to achieve each of these precursors to peace. However, the Court’s progress up to this point provides insights about the prospects for peace in Darfur. The Court has not yet reduced the culture of impunity since it has failed to arrest any of the indictees. Also, the Court will undoubtedly perpetuate the culture of impunity if it grants amnesty to President Bashir to Vice President Taha in exchange for handing over the current indictees, which is an idea that has been hinted at by Sudanese officials. Clearly, the Court has been unable to achieve the second precursor to peace, since the ICC has not yet compelled President Bashir to moderate his views. Although, the combined efforts of the UN Security Council and the ICC could force President Bashir to abandon his extremist views and allow a robust UN peacekeeping force into the region. In order to assess the third precursor for peace, the impact that the ICC has had on victims’ desire for vengeance, it is necessary to conduct further investigation into victims’ levels of violence, awareness of the ICC, and preferred forms of retribution.
The ICC’s involvement in Uganda provides valuable insights on the Court’s efforts and the prospects for peace in Sudan. A successful completion of the case in Sudan will not only enforce justice for the crimes committed, but will also set the stage for peace in the Darfur region.
Nicki Alam is an analyst at CNA, where she conducts research on African affairs for the U.S. Department of Defense. This posting was written in a personal capacity and all the views represented are the responsibility of the author alone.